G.R. No.

L-13431            November 12, (referring to the body of the will itself) to
1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-
appellee,
vs.
ANASTACIA ABANGAN, ET
AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19, 1917, the Court of First
Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From
this decision the opponent's appealed.
Said document, duly probated as Ana
Abangan's will, consists of two sheets, the
first of which contains all of the disposition
of the testatrix, duly signed at the bottom
by Martin Montalban (in the name and
under the direction of the testatrix) and
by three witnesses. The following sheet
contains only the attestation clause duly
signed at the bottom by the three
instrumental witnesses. Neither of these
sheets is signed on the left margin by the
testatrix and the three witnesses, nor
numbered by letters; and these
omissions, according to appellants'
contention, are defects whereby the
probate of the will should have been
denied. We are of the opinion that the will
was duly admitted to probate.
In requiring that each and every sheet of
the will should also be signed on the left
margin by the testator and three
witnesses in the presence of each other,
Act No. 2645 (which is the one applicable
in the case) evidently has for its object
sheet of the will has been removed. But,
avoid the substitution of any of said
sheets, thereby changing the testator's
dispositions. But when these dispositions
are wholly written on only one sheet
signed at the bottom by the testator and
three witnesses (as the instant case),
their signatures on the left margin of said
sheet would be completely purposeless. In
requiring this signature on the margin, the
statute took into consideration,
undoubtedly, the case of a will written on
several sheets and must have referred to
the sheets which the testator and the
witnesses do not have to sign at the
bottom. A different interpretation would
assume that the statute requires that this
sheet, already signed at the bottom, be
signed twice. We cannot attribute to the
statute such an intention. As these
signatures must be written by the testator
and the witnesses in the presence of each
other, it appears that, if the signatures at
the bottom of the sheet guaranties its
authenticity, another signature on its left
margin would be unneccessary; and if
they do not guaranty, same signatures,
affixed on another part of same sheet,
would add nothing. We cannot assume
that the statute regards of such
importance the place where the testator
and the witnesses must sign on the sheet
that it would consider that their signatures
written on the bottom do not guaranty the
authenticity of the sheet but, if repeated
on the margin, give sufficient security.
In requiring that each and every page of a
will must be numbered correlatively in
letters placed on the upper part of the
sheet, it is likewise clear that the object of
Act No. 2645 is to know whether any
when all the dispositive parts of a will are
written on one sheet only, the object of
the statute disappears because the
removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to
the attestation clause. Wherefore, without
considering whether or not this clause is
an essential part of the will, we hold that
in the one accompanying the will in
question, the signatures of the testatrix
and of the three witnesses on the margin
and the numbering of the pages of the
sheet are formalities not required by the
statute. Moreover, referring specially to
the signature of the testatrix, we can add
that same is not necessary in the
attestation clause because this, as its
name implies, appertains only to the
witnesses and not to the testator since the
latter does not attest, but executes, the
will.
Synthesizing our opinion, we hold that in
a will consisting of two sheets the first of
which contains all the testamentary
dispositions and is signed at the bottom
by the testator and three witnesses and
the second contains only the attestation
clause and is signed also at the bottom by
the three witnesses, it is not necessary
that both sheets be further signed on their
margins by the testator and the
witnesses, or be paged.
The object of the solemnities surrounding
the execution of wills is to close the door
against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity.
Therefore the laws on this subject should
be interpreted in such a way as to attain
these primordal ends. But, on the other
hand, also one must not lose sight of the
fact that it is not the object of the law to
restrain and curtail the exercise of the
right to make a will. So when an
interpretation already given assures such
ends, any other interpretation
whatsoever, that adds nothing but
demands more requisites entirely
unnecessary, useless and frustative of the
testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is
alleged the records do not show that the
testarix knew the dialect in which the will
is written. But the circumstance appearing
in the will itself that same was executed in
the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor
is enough, in the absence of any proof to
the contrary, to presume that she knew
this dialect in which this will is written.
For the foregoing considerations, the
judgment appealed from is hereby
affirmed with costs against the appellants.
So ordered.
G.R. No. L-2862             April 21, 1952
TESTATE ESTATE OF MARIA ZUÑIGA
VDA. DE PANDO, deceased. JUAN
REYES, petitioner-administrator-
appellant,
vs.
DOLORES ZUÑIGA VDA. DE
VIDAL, oppositor-appellee.
Jose Sotelo Mati and Agustin Alvarez
Salazar for appellant.
Jose Perez Cardenas for appellee.
BAUTISTA ANGELO, J.:
This concerns the admission to probate of
a document claimed to be the last will and
testament of Maria Zuñiga Vda. de Pando
who died in the City of Manila on October
29, 1945.
On November 6, 1945, a petition for the
probate of said will was filed in the Court
of First Instance of Manila. On December
21, 1945, Dolores Zuñiga Vda. de Vidal,
sister of the deceased, filed an opposition
based on several grounds. And, after
several days of trial, at which both parties
presented their respective evidence, the
court rendered its decision disallowing the
will on the ground that the signatures of
the deceased appearing therein are not
genuine, that it was not proven that the
deceased knew the Spanish language in
which it was written, and that even if the
signatures are genuine, the same reveal
that the deceased was not of sound mind
when she signed the will. From this
decision petitioner appealed to this Court.
While petitioner imputes nine errors to the
lower court, we believe, however, that for
purposes of this appeal of discussion of
some would be sufficient. Thus, the issues
may be boiled down as follows: 1)
Whether or not the signatures of the
deceased appearing in the will (Exhibit
"C") are genuine; 2) whether or not there
is evidence to show that the testatrix
knew the language in which the will was
written; and 3) whether or not the
testatrix was of sound and disposing mind
when she signed the will.
1. To prove that the will was signed by the
testatrix in accordance with law, petitioner
presented as witnesses the three persons
who attested to the execution of the will.
These witnesses are: Cornelia Gonzales de
Romero, Quintin Ulpindo and Consuelo B.
de Catindig. The first used to provide the
deceased with ice every day, and in one of
those occasions she went to her house to
bring ice, she requested to act witness to
the execution of the will. The second was
a laborer whose job was is to fix bed
made of rattan, and in one of those days
he went to the house of the deceased to
work, he was asked also to witness the
signing of the will. And the third was a
neighbor of the deceased for many years
who was also requested to act as an
instrumental witness. These witnesses
testified in their own simple and natural
way that the deceased signed the will
seated on her bed but over a small table
placed near the bed in their presence, and
after she had signed it in the places where
her signatures appear, they in turn signed
it in the presence and in the presence of
each other. This is the substance of what
they have testified and from an
examination of their testimony to the
court entertains no doubt that they had
told the truth. There is nothing in their
testimony which may in any way reflect
against their credibility nor has the
oppositor proven fact or circumstance
which may give rise to the suspicion that
they testified out of personal interest or
pecuniary consideration. They have
impressed the court as simple persons
who had intervened in the execution of
the will out merely of deference to the
testatrix whom they had served for
sometime and had known to be a good
and respectable woman.
What evidence has the oppositor
presented to contradict the testimony of
these instrumental witnesses? only one
expert witness, Jose G. Villanueva, who
made a comparative analysis of the
signatures appearing in the will in relation
to some genuine signatures of the
deceased, and in fact testified on the
analysis and study he has made of said
signatures and submitted a memorandum
on the study and comparison he has
made. And in his testimony as well as in
his memorandum, this witness has
reached the conclusion that the hand that
wrote the signatures of the deceased
appearing in the will is not the same hand
that wrote the genuine signatures he had
examined and which he used as basis of
his analytical study, thereby concluding
that said signatures are not genuine. The
lower court gave full faith and credit to
the opinion of this expert witness, and
decreed as a result that the will cannot be
admitted to probate.
There are, however, certain important
facts and circumstances which make us
differ from this opinion of the lower court.
In the first place, we find that the opinion
of this expert witness has been rebutted
by another expert witness Jose C.
Espinosa, whose opinion, to our mind,
deserves more weight and credence. And
our reason for reaching this conclusion is
the fact that the standards of the
comparison used by Espinosa are more
reliable than those used by Villanueva in
the comparison are two signatures
appearing in two documents executed on
November 10, 1942, one signature in an
identification card affixed in April 1940, a
half signature appearing in a letter written
on October 8, 1943, one signature
appearing in a letter written on July 16,
1945, and one signature appearing in a
letter written on January, 1945, whereas
the disputed signatures appearing in the
will were affixed on October 29, 1945. On
the other hand, the standards used by
Espinosa in making his comparative study
bear dates much closer to that of the
disputed signatures. Thus, he examined
four genuine signatures that were affixed
on October 16, 1945, other four
signatures that were affixed in October
1945, one on January 2, 1945, on January
24, 1945, and one on September 24
1945, He also examined one affixed on
March 12, 1941, only for emphasis. The
closeness or proximity of the time in
which the standards used had been
written to that of the suspected signature
or document is very important to bring
about an accurate analysis and conclusion.
the selection of the proper standards of
comparison is of paramount importance
especially if we consider the age and the
state of the health of the author of the
questioned signatures. a signature affixed
in 1941 may involved characteristics
different from those borne by a signature
affixed in 1945. And this is because the
passing of time and the increase in age
may have a decisive influence in the
writing characteristics of a person. It for
this reasons that the authorities of the
opinion that in order to bring about an
accurate comparison and analysis, the
standard of comparison must be as close
as possible in point of time to the
suspected signature. Such was not
followed in the study made by Villanueva.
But such was observed in the study made
by Espinosa. He followed the standard
practice in handwriting analysis. It is for
this reason that we hold that Espinosa's
opinion deserves more weight and
consideration.
The standards should, if possible, have
been made by the same time as the
suspected document. It is preferable that
the standards embraced the time of the
origin of the document, so that one part
comes from the time after the origin.
(Page 423 "Modern Criminal Investigation"
by Soderman and O' Connell, 1936, Funk
and Wagnalls Company, New York and
London.)
If possible less than five or six signatures
should always be examined and preferably
double that number." (Page 139, Forensic
Chemistry and Scientific Criminal
Investigation by Lucas, 1935, Edward
Arnold & Co., London.)
2. Another ground on which the lower
court base the disallowance of the will is
the failure of the petitioner to prove that
the testratrix knew and spoke the
language in which the will in question
appears to have been written. According
to the lower court, the law requires that
the will should be written in the dialect or
language known to the testator and this
fact having been proven, the probate of
the will must fail. And the wall was
disallowed.
There is indeed nothing in the testimony
of the witnesses presented by the
petitioner which would indicate that the
testatrix knew and spoke the Spanish
language used in the preparation of the
will in question. But, in our opinion, this
failure alone does not in itself suffice to
conclude that this important requirement
of the law has not been complied with, it
appearing that there is enough evidence
on record which supplies this technical
omission. In the first place, we have the
undisputed fact that the deceased was
a mestiza española, was married to a
Spaniard, Recaredo Pando, and made
several trips to Spain. In the second
place, we have the very letters submitted
as evidence by the oppositor written in
Spanish by the deceased possessed the
Spanish language, oppositor cannot now
be allowed to allege the contrary. These
facts give rise to the presumption that the
testatrix knew the language in which the
testament has been written, which
presumption should stand unless the
contrary is proven (Abangan vs. Abangan,
40 Phil., 476; Gonzales vs. Laurel, 46 Phil.
750). And this presumption has not been
overcome. And finally, we have the very
attestation clause of the will which states
that the testatrix knew and possessed the
Spanish language. It is true that this
matter is not required to be stated in the
attestation clause, but its inclusion can
only mean that the instrumental witnesses
wanted to make it of record that the
deceased knew the language in which the
will was written. There is, therefore, no
valid reason why the will should be
avoided on this ground.
3. The remaining ground which the lower
court has considered in disallowing the will
is the fact that the deceased was not of
sound and disposing mind when she
signed the will, and it reached this
conclusion, not because of any direct
evidence on the matter, but simply
because the deceased signed the will in a
somewhat varied form. On this point the
lower court said:
El Juzgado es de opinion que aunque se
admita que las firmas arriba indicadas
feuran de Maria Zuñiga Vda. de Pando, las
mismas revelan que ella no estabe en el
pleno de sus facultades mentales cuando
la hicieron firmar el documento, Exhibit C,
pues el hecho de que en una sola ocasion
la repetida Maria Zuñiga Vda. de Pando
firmo dos veces, sin escribir su verdadero
nombre, demuestra que ella no se daba
cuenta de sus actos por no hallarse
mentalmente sana. Si esto es asi, no se
debe legalizar como testamento y ultima
voluntad de la finada Maria Zuñiga Vda.
de Pando el documento, Exhibit C, porque
el Articulo 614 de la Ley 190 y el Articulo
12, Reglamentos de los Tribunales,
disponen que solamente pueden otorgar
testamento las personas que al tiempo de
su otorgamiento estaban en el pleno goce
de sus facultades mentales.
The above conclusion is contrary to what
the instrumental witnesses have said on
this point. Cornelio Gonzales de Romero
stated that she spoke to the deceased
before the signing of the will, and judging
from the way she spoke she was of the
impression that the deceased was of
sound mind at the time. To the same
effect is the testimony of Consuelo B. de not see or was so week and inattentive as
Catindig. She said that her impression not to care what the result might be. This
when the deceased signed the will was careless, perfectly evident repetition
that she could still talk and read, only that (figure 184), unlike the painstaking and
she was weak. In fact she read the will delicate retouching of the forger, often
before signing it. These statements had indicates genuineness. (Page 365,
not been contradicted. They give an idea Questioned Documents by Osborne, 2nd
of the mental had not contradicted. They Edition, 1927.)
give an idea of mental condition of the We are, therefore, of the opinion that the
deceased in the will differ from each other lower court erred in disallowing the will
in certain respects, this is only due to her Exhibit C.
age and state of health rather than to a Wherefore, the decision appealed from is
defective mental condition. They do not hereby reversed. The Court admits the will
reveal a condition of forgery or lack of Exhibit C to probate, and remands these
genuineness. These differences or case to the lower court for further
irregularities are common in the writings proceedings, with costs against the
of old people and, far from showing lack appellee.
of genuineness, are indicative of the age,
sickness, or weak condition of the writer.
A comparison of the three disputed
signatures in the will readily give this
impression.
Abbreviated, distorted and illegible, forms,
which are sufficiently free and rapid, often
actually indicate genuineness rather than
forgery even though they are very
unusual and not exactly like those in the
standard writing. Those who write of
difficulty or hesitation through some
physical infirmity may sometimes
produced broken and unfinished
signatures and these results, which in
themselves are distinctly divergent as
compared with signatures produced under
conditions of strength and health, may
forcefully indicate genuineness . Under
conditions of weakness due to diseased or
age, parts of a genuine signature may be
clumsily written over a second time not at
just the same place and in a way when
clearly shows that the writer either could
[G.R. No. 28946. January 16, 1929.]
In re estate of Piraso, deceased.
SIXTO ACOP, Petitioner-Appellant, v.
SALMING PIRASO, ET AL., Appellees.
Gibbs & McDonough and Roman
Ozaeta, for Appellant.
Adolfo A. Scheerer, for Appellees.
SYLLABUS
1. WILLS; PROBATE OF. — The decedent’s
alleged will, being written in English, a
language unknown to said decedent,
cannot be probated, because it is
prohibited by the law, which clearly and
positively requires that the will be written
in the language or dialect known by the
testator. (Sec. 618, Act No. 190.)
DECISION
ROMUALDEZ, J.:
This appeal was taken from the judgment
of the Court of First Instance of Benguet,
denying the probate of the instrument
Exhibit A, as the last will and testament of
the deceased Piraso.
The proponent-appellant assigns the
following as alleged errors of the lower
court:jgc:chanrobles.com.ph
"1. In holding that in order to be valid the
will in question should have been drawn
up in the Ilocano dialect.
"2. In not holding that the testator Piraso
did not know the Ilocano dialect well
enough to understand a will drawn up in
said dialect.
"3. In refusing to admit the will in
question to probate."cralaw virtua1aw
library
The fundamental errors assigned refer
chiefly to the part of the judgment which
reads as follows:jgc:chanrobles.com.ph
"The evidence shows that Piraso knew
how to speak the Ilocano dialect, although
imperfectly, and could make himself
understood in that dialect, and the court is
of the opinion that his will should have
been written in that dialect."cralaw
virtua1aw library
Such statements were unnecessary for the
decision of the case, once it has been
proved without contradiction, that the said
deceased Piraso did not know English, in
which language the instrument Exhibit A,
alleged to be his will, is drawn. Section
618 of the Code of Civil Procedure, strictly
provides that:jgc:chanrobles.com.ph
"No will, except as provided in the
preceding section" (as to wills executed by
a Spaniard or a resident of the Philippine
Islands, before the present Code of Civil
Procedure went into effect), "shall be valid
to pass any estate, real or personal, nor
charge or affect the same, unless it be
written in the language or dialect known
by the testator," etc. (Parenthesis and
italics ours.) Nor can the presumption in
favor of a will established by this court in
Abangan v. Abangan (40 Phil., 476), to
the effect that the testator is presumed to
know the dialect of the locality where he
resides, unless there is proof to the
contrary, even be invoked in support of
the probate of said document Exhibit A, as
a will, because, in the instant case, not
only is it not proven that English is the
language of the City of Baguio where the
deceased Piraso lived and where Exhibit A
was drawn, but that the record contains
positive proof that said Piraso knew no
other language than the Igorrote dialect,
with a smattering of Ilocano; that is, he
did not know the English language in
which Exhibit A is written. So that even if
such a presumption could have been
raised in this case it would have been
wholly contradicted and destroyed.
We consider the other questions raised in
this appeal needless and immaterial to the
adjudication of this case, it having been,
as it was, proven, that the instrument in
question could not be probated as the last
will and testament of the deceased Piraso,
having been written in the English
language with which the latter was
unacquainted.
Such a result based upon solidly
established facts would be the same
whether or not it be technically held that
said will, in order to be valid, must be
written in the Ilocano dialect; whether or
not the Igorrote or Inibaloi dialect is a
cultivated language and used as a means
of communication in writing, and whether
or not the testator Piraso knew the
Ilocano dialect well enough to understand
a will written in said dialect. The fact is,
we repeat, that it is quite certain that the
instrument Exhibit A was written in
English, which the supposed testator
Piraso did not know, and this is sufficient
to invalidate said will according to the
clear and positive provisions of the law,
and inevitably prevents its probate.

The judgment appealed from is affirmed,

with the costs of this instance against the
appellant. So ordered.
G.R. No. L-12286 August 31, 1960
JOSE JAVELLANA, ET AL., Plaintiffs-
Appellants, vs. FELICIDAD JAVELLANA,
ET AL., Defendants-Appellees.
Fulgencio Vega for appellants.
Tirol and Tirol for appellees.
GUTIERREZ DAVID, J.: chanrobles
virtual law library
This is an action filed in the Court of First
Instance of Iloilo for the recovery of
certain properties alleged to be subject to
"reserva viudal" under the old Civil Code.
The action having been dismissed by the
lower court on the ground that the
properties were not reversible, plaintiffs
took the present
appeal.chanroblesvirtualawlibrary chanrob
les virtual law library
The pertinent facts of the case are not
disputed. Julio Javellana, father of herein
plaintiffs, was married three times. His
first wife was Maria Joseliva, with whom
he had several children all of whom are
now deceased. After the death of Maria
Joseliva, he married Sofia Jalandoni,
became a widower a second time, and
subsequently married Apolinaria Ledesma.
He had several children in the second
marriage, five of whom are surviving and
are the plaintiffs herein, while his third
and last marriage was
childless.chanroblesvirtualawlibrary chanr
obles virtual law library
On May 14, 1924 Julio Javellana died
testate leaving considerable personal and
real properties belonging to him
exclusively situated in the provinces of
Iloilo and Negros Occidental and in Manila.
After his will and two codicils had been
duly probated, two-thirds of said
properties, constituting the legitimate,
were distributed among his forced heirs,
namely, his grand-daughter by the first
marriage and his children in the second.
To his widow Apolinaria Ledesma, Julio
Javellana bequethed certain real and
personal properties from the free portion
of his estate. Following a project of
partition signed by the deceased's heirs
and legatees on February 4, 1925, which
was duly approved by the probate court,
Apolinaria Ledesma took possession of the
properties bequeathed and adjudicated to
her. Not long thereafter, she had the
Torrens titles covering said properties
cancelled and new ones issued in her
name.chanroblesvirtualawlibrary chanrobl
es virtual law library
On October 20, 1952 Apolinario Ledesma
died testate in the city of Iloilo, without
contracting a second marriage or having
an acknowledged natural child. For the
probate of her will and codicil, proceedings
were instituted in the Court of First
Instance of Iloilo. Included in the estate
left by her were the properties which she
inherited from her husband Julio
Javellana.chanroblesvirtualawlibrary chanr
obles virtual law library
On May 14, 1956 herein plaintiffs filed the
present action against Felicidad Javellana,
the judicial administratrix of Apolinaria
Ledesma's estate, claiming that the
properties which the latter inherited from
their father were subject to reservation
("reserva viudal"). In their complaint,
plaintiffs prayed that the properties be
returned to them and to the children of
their deceased sister Juliana Javellana de
Montinola, who were made defendants
because of their refusal to be joined as
plaintiffs.chanroblesvirtualawlibrary chanr
obles virtual law library
Before trial, the parties entered into a
stipulation of facts and after hearing was
had on defendants' counterclaim, the
lower court on December 24, 1956
rendered it decision dismissing plaintiffs'
complaint. Hence, this
appeal.chanroblesvirtualawlibrary chanrob
les virtual law library
The appeal is without merit. Article 968 of
the old Civil Code cited by plaintiffs
themselves in support of their claim,
provides:
ART. 968. Besides the reservation
imposed by Article 811, any widower or
widow who contracts a second marriage
shall be obliged to reserve for the children
and descendants of the former marriage
the ownership of all the property he or she
may have acquired from the deceased
spouse by will, intestate succession, gift,
or by other lucrative title, but not his or
her half of the profits of the conjugal
partnership.
From the above provisions, it is apparent
that only the children begotten in the
marriage with the widow or widower, are
entitled to reservation. The children of the
deceased spouse begotten in a former or
earlier marriage are, therefore, not
entitled to reservation, since they are not
the common children of the deceased and
the surviving spouse. (See Scaevola 166-
167; 6 Sanchez Roman 1877; 7 Manresa,
244, 247) Plaintiffs in this case not being
the children of the deceased Julio
Javellana and the widow Apolinaria
Ledesma, now also deceased, it follows
that they are not entitled to reservation
and therefore have no valid claim to the
properties in
question.chanroblesvirtualawlibrary chanr
obles virtual law library
Moreover, under the applicable provisions
of the old Civil Code, the obligation to
reserve arises only when the widow or
widower remarries (Art. 968), or has an
acknowledged natural child, in case he or
she does not remarry. (Art 980). In the
present case, it is not disputed that the
widow Apolinaria Ledesma never
contracted any subsequent marriage.
Neither did she have any acknowledged
natural child during her widowhood. The
necessary requisites of the law having
failed to concur, the properties claimed by
plaintiffs are consequently not reservable.
(Macasa vs. Heirs of Garcia, 49 Phil.,
698).chanroblesvirtualawlibrary chanroble
s virtual law library
In view of the foregoing, the decision
appealed from is affirmed, with costs
against plaintiffs-appellants.
G.R. No. L-6285             February 15,
1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET
AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the
case of Faustino Cabacungan vs. Pedro
Barut and another, No. 6284,1 just
decided by this court, wherein there was
an application for the probate of an
alleged last will and testament of the
same person the probate of whose will is
involved in this suit.
This appeal arises out of an application on
the part of Pedro Barut to probate the last
will and testament of Maria Salomon,
deceased. It is alleged in the petition of
the probate that Maria Salomon died on
the 7th day of November, 1908, in the
pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2,
1907. Severo Agayan, Timotea Inoselda,
Catalino Ragasa, and A. M. Jimenez are
alleged to have been witnesses to the
execution thereof. By the terms of said
will Pedro Barut received the larger part of
decedent's property.
The original will appears on page 3 of the
record and is in the Ilocano dialect. Its
translation into Spanish appears at page
11. After disposing of her property the
testatrix revoked all former wills by her
made. She also stated in said will that
being unable to read or write, the same
had been read to her by Ciriaco
Concepcion and Timotea Inoselda and that
she had instructed Severo Agayan to sign
her name to it as testatrix.
The probate of the will was contested and
opposed by a number of the relatives of
the deceased on various grounds, among
them that a later will had been executed
by the deceased. The will referred to as
being a later will is the one involved in
case No. 6284 already referred to.
Proceeding for the probate of this later will
were pending at the time. The evidence of
the proponents and of the opponents was
taken by the court in both cases for the
purpose of considering them together.
In the case before us the learned probate
court found that the will was not entitled
to probate upon the sole ground that the
handwriting of the person who it is alleged
signed the name of the testatrix to the will
for and on her behalf looked more like the
handwriting of one of the other witnesses
to the will than that of the person whose
handwriting it was alleged to be. We do
not believe that the mere dissimilarity in
writing thus mentioned by the court is
sufficient to overcome the uncontradicted
testimony of all the witnesses to the will
that the signature of the testatrix was
written by Severo Agayan at her request
and in her presence and in the presence of
all the witnesses to the will. It is
immaterial who writes the name of the
testatrix provided it is written at her
request and in her presence and in the
presence of all the witnesses to the
execution of the will.
The court seems , by inference at least, to
have had in mind that under the law
relating to the execution of a will it is
necessary that the person who signs the
name of the testatrix must afterwards
sign his own name; and that, in view of
the fact that, in the case at bar, the name
signed below that of the testatrix as the
person who signed her name, being, from
its appearance, not the same handwriting
as that constituting the name of the
testatrix, the will is accordingly invalid,
such fact indicating that the person who
signed the name of the testatrix failed to
sign his own. We do not believe that this
contention can be sustained. Section 618
of the Code of Civil Procedure reads as
follows:
No will, except as provided in the
preceding section, shall be valid to pass
any estate, real or personal, nor charge or
effect the same, unless it be in writing and
signed by the testator, or by the testator's
name written by some other person in his
presence, and by his expenses direction,
and attested and subscribed by three or
more credible witnesses in the presence of
the testator and of each. . . .
This is the important part of the section
under the terms of which the court holds
that the person who signs the name of the
testator for him must also sign his own
name The remainder of the section reads:
The attestation shall state the fact that
the testator signed the will, or caused it to
be signed by some other person, at his
express direction, in the presence of three
witnesses, and that they attested and
subscribed it in his presence and in the
presence of each other. But the absence
of such form of attestation shall not
render the will invalid if it is proven that
the will was in fact signed and attested as
in this section provided.
From these provisions it is entirely clear
that, with respect to the validity of the
will, it is unimportant whether the person
who writes the name of the testatrix signs
his own or not. The important thing is that
it clearly appears that the name of the
testatrix was signed at her express
direction in the presence of three
witnesses and that they attested and
subscribed it in her presence and in the
presence of each other. That is all the
statute requires. It may be wise as a
practical matter that the one who signs
the testator's name signs also his own;
but that it is not essential to
the validity of the will. Whether one
parson or another signed the name of the
testatrix in this case is absolutely
unimportant so far as the validity of her
will is concerned. The plain wording of the
statute shows that the requirement laid
down by the trial court, if it did lay down,
is absolutely unnecessary under the law;
and the reasons underlying the provisions
of the statute relating to the execution of
wills do not in any sense require such a
provision. From the standpoint of
language it is an impossibility to draw
from the words of the law the inference
that the persons who signs the name of
the testator must sign his own name also.
The law requires only three witnesses to a
will, not four.
Nor is such requirement found in any
other branch of the law. The name of a
person who is unable to write may be
signed by another by express direction to
any instrument known to the law. There is
no necessity whatever, so far as the
validity of the instrument is concerned, for
the person who writes the name of the
principal in the document to sign his own
name also. As a matter of policy it may be
wise that he do so inasmuch as it would
give such intimation as would enable a
person proving the document to
demonstrate more readily the execution
by the principal. But as a matter of
essential validity of the document, it is
unnecessary. The main thing to be
established in the execution of the will is
the signature of the testator. If that
signature is proved, whether it be written
by himself or by another at his request, it
is none the less valid, and the fact of such
signature can be proved as perfectly and
as completely when the person signing for
the principal omits to sign his own name
as it can when he actually signs. To hold a
will invalid for the lack of the signature of
the person signing the name of the
principal is, in the particular case, a
complete abrogation of the law of wills, as
it rejects and destroys a will which the
statute expressly declares is valid.
There have been cited three cases which it
is alleged are in opposition to the doctrine
which we have herein laid down. They
are Ex parte Santiago (4 Phil. Rep.,
692), Ex parte Arcenas (4 Phil. Rep.,
700), and Guison vs. Concepcion (5 Phil.
Rep., 551). Not one of these cases is in
point. The headnote in the case last above
stated gives an indication of what all of
cases are and the question involved in
each one of them. It says:
The testatrix was not able to sign it for
her. Instead of writing her name he wrote
his own upon the will. Held, That the will
was not duly executed.
All of the above cases are precisely of this
character. Every one of them was a case
in which the person who signed the will
for the testator wrote his own name to the
will instead of writing that of the testator,
so that the testator's name nowhere
appeared attached to the will as the one
who executed it. The case of Ex
parte Arcenas contains the following
paragraph:
Where a testator does not know, or is
unable for any reason, to sign the will
himself, it shall be signed in the following
manner: "John Doe, by the testator,
Richard Roe;" or in this form: "By the
testator. John Doe, Richard Roe." All this
must be written by the witness signing at
the request of the testator.
The only question for decision in that
case, as we have before stated, was
presented by the fact that the person who
was authorized to sign the name of the
testator to the will actually failed to sign
such name but instead signed his
own thereto. The decision in that case
related only to that question.
Aside from the presentation of an alleged
subsequent will the contestants in this
case have set forth no reason whatever
why the will involved in the present
litigation should not be probated. The due
and legal execution of the will by the
testatrix is clearly established by the
proofs in this case. Upon the facts,
therefore, the will must be probated. As to
the defense of a subsequent will, that is
resolved in case No. 6284 of which we
have already spoken. We there held that
said later will not the will of the deceased.
The judgment of the probate court must
be and is hereby reversed and that court
is directed to enter an order in the usual
form probating the will involved in this
litigation and to proceed with such
probate in accordance with law.
Arellano, C.J., Mapa and Carson,
JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that
section 618 of the Code of Civil Procedure
does not expressly require that, when the
testator or testatrix is unable or does not
know how to sign, the person who, in the
presence and under the express direction
of either of them, writes in the name of
the said testator or testatrix must also
sign his own name thereto, it being
sufficient for the validity of the will that
the said person so requested to sign the
testator or testatrix write the name of
either in his own handwriting.
Since this court began to decide cases
with regard to the form, conditions and
validity of wills executed in accordance
with the provisions of the Code of Civil
Procedure, never has the specific point
just above mentioned been brought into
question. Now for the first time is affirmed
in the majority opinion, written by the
learned and distinguished Hon. Justice
Moreland, that, not being required by the
said code, the signature of the name of
the person who, at the request of the
testator or testatrix, writes the name of
either of the latter to the will executed, is
not necessary.
Various and considerable in number have
been the decisions rendered by this court
in which, as will be seen further on, upon
applying the said section 618 of Code of
Civil Procedure and requiring its
observance in cases where the testator or
testatrix is unable or does not know how
to sign his or her name, expressly
prescribed the practical method of
complying with the provisions of the law
on the subject. Among these decisions
several were written by various justices of
this court, some of whom are no longer on
this bench, as they have ceased to hold
such position.
Paragraph 2 of the syllabus of case No.
2002, Ex parte Delfin
Santiago,1 concerning the probate of a
will, reads as follows:
Wills, authentication of . — Where a will is
not signed by a testator but by some
other person in his presence and by his
direction, such other person should affix
the name of the testator thereto, and it is
not sufficient that he sign his own name
for and instead of the name of the
testator.
Paragraph 1 of the syllabus of case No.
1708, Ex parte Arcenas,2 in the matter of
the probate of a will, states:
1. Wills, requisites of; Civil Code, article
repealed. — Article 695 of the Civil
Procedure; consequently where a testator
is unable to sign his name, the person
signing at his request must write at the
bottom of the will the full name of the
testator in the latter's presence, and by
his express direction, and then sign his
own name in full.
In the syllabus of decision No. 2586,
Tomas Guison vs. Maria Concepcion,3 the
following statements appear:
Wills; inability to sign; signature by
another. — The testatrix was not able to
sign her name to the will, and she
requested another person to sign it for
her. Held, That the will was not duly
executed. (Following Ex parte Arcenas et
al., No. 1708, August 24, 1905; Ex
parte Arcenas et al., No. 1708, August 24,
1905; Ex parte Santiago, No. 2002,
August 18, 1905.)
The following syllabus precedes decision
No. 3907:4
Execution of wills. — Where it appears in a
will that the testator has stated that by
reason of his inability to sign his name he
requested one of the three witnesses
present to do so, and that as a matter of
fact, the said witness wrote the name and
surname of the testator who, stating that
the instrument executed by him contained
his last will, put the sign of the cross
between his said name and surname, all
of which details are set forth in a note
which the witnesses forthwith subscribed
in the presence of the testator and of each
other, said will may be probated.
When the essential requisites of section
618 of the Code of Civil Procedure for the
execution and validity of a will have been
complied with, the fact that the witness
who was requested to sign the name of
the testator, omitted to state the words
'by request of .......... the testator,' when
writing with his own hand the name and
surname of the said testator, and the fact
that said witness subscribed his name
together with the other witnesses and not
below the name of the testator, does not
constitute a defect nor invalidate the said
will.
The following statement appears in the
syllabus of case No. 4132, in the matter of
the will of Maria Siason:5
The recital of the name of the testator as
written below the will at his request
serves as a signature by a third person.
Moreover among the grounds given as a
basis for this same decision, the following
appears:
In sustaining this form of signature, this
court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil.
Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the
correct formula for a signature which
ought to be followed, but did not mean to
exclude any other for substantially
equivalent.
In the syllabus of decision No. 4454,6 Ex
parte Ondevilla et al., the following
appears:
The testatrix was unable to sign her will
with her own hand and requested another
person to sign for her in her presence.
This the latter did, first writing the name
of the testatrix and signing his own name
below: Held, That the signature of the
testatrix so affixed is sufficient and a will
thus executed is admissible to probate.
(Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets
forth that:
The legality of a will is not affected by the
insertion, supposed to have been made
subsequently, of another name before
that of the testator when such name may
be treated as nonexistent without
affecting its validity.
Among the conclusions contained in this
last decision the following is found:
Although the said words "For Simplicia de
los Santos" be considered as inserted
subsequently, which we neither affirm nor
deny, because a specific determination
either way is unnecessary, in our opinion
the signature for the testatrix placed
outside of the body of the will contains the
name of the testatrix as if she signed the
will, and also the signature of the witness
who, at her request, wrote the name of
the testatrix and signed for her, affirming
the truth of this fact, attested by the other
witnesses then present. And this fully
complies with the provisions of section
618 of the Act.
It is true that in none of the decisions
above quoted was the rule established
that the person who, at the request of the
testator or testatrix, signed the latter's or
the former's name and surname to the will
must affix his own signature; but it no
less true that, in prescribing the method
in which the provisions of the said section
618 to be complied with, it was stated
that, in order that a will so executed
might be admitted to probate, it was an
indispensable requisite that the person
requested to sign in place of the testator
or testatrix, should write the latter's or
the former's name and surname at the
foot of the will in the presence and under
the direction of either, as the case might
be, and should afterwards sign the
instrument with his own name and
surname.
The statement that the person who writes
the name and surname of the testator or
testatrix at the foot of the will should
likewise affix his own signature thereto,
name and surname, though it be
considered to be neither a rule nor a
requisite necessary to follow for the
admission of the will to probate, yet it is
unquestionable that, in inserting this last
above-mentioned detail in the aforesaid
decisions, it was deemed to be a
complement and integral part of the
required conditions for the fulfillment of
the provisions of the law.
It is undisputable that the latter does not
require the said subscription and signature
of the person requested to affix to the will
the name of the testator or testatrix who
is not able to sign; but by stating in the
decisions hereinabove quoted that the
name and surname of the said person
should be affixed by him, no act
prohibited by law was recommended or
suggested, nor may such a detail be
understood to be contrary or opposed to
the plain provisions thereof.
In the preceding decision itself, it is
recognized to be convenient and even
prudent to require that the person
requested to write the name of the
testator or testatrix in the will also sign
the instrument with his own name and
surname. This statement induces us to
believe that, in behalf of the inhabitants of
this country and for sake of an upright
administration of justice, it should be
maintained that such a signature must
appear in the will, since no harm could
accrue to anyone thereby and, on the
contrary, it would serve as a guarantee of
the certainty of the act performed and
also might eliminate some possible cause
of controversy between the interested
parties.
The undersigned feels it his duty to admit
that, though convinced of the complete
repeal of article 695 of the Civil Code and,
while he conceded that, in the
examination and qualification of a will for
the purpose of its probate, one has but to
abide by the provisions of said section 618
of the Code of Civil Procedure, the sole
law applicable in the matter, yet, perhaps
imbued with the strongly impelled by a
traditional conception of the laws which he
has known since youth, relative to the
form of execution of testaments, he
believed it to be a vary natural and
common sense requisite that the
signature, with his own name and
surname, of the person requested to write
in the will the name and surname of the
testator or testatrix should form a part of
the provisions of the aforementioned
section 618.
He undoubtedly thought, perhaps
mistakenly, that such a requisite of the
signature of the person before referred to
— a requisite deemed to be convenient
and prudent in the majority opinion —
formed a part of the provisions of the law,
since the latter contains nothing that
prohibits it. The aforementioned different
decisions were drawn up in the form in
which they appear, and signed without
dissent by all the justices of the court on
various dates. None of them hesitated to
sign the decisions, notwithstanding that it
was expressly held therein that the person
above mentioned should, besides writing
in the will the name and surname of the
testator or testatrix, also sign the said
instrument with his own name and
surname.
Without being understood to criticize the
provision contained in the said section 618
of the Code of Civil Procedure it will not be
superfluous to mention that the system
adopted in this section is the same as was
in vogue under the former laws that
governed in these Islands, with respect to
witnesses who were not able or did not
know how to sign their testimony given in
criminal or civil cases, in which event any
person at all might write the name and
surname of the witness who was unable or
did not know how to sign, at the foot of
his deposition, where a cross was then
drawn, and, this done, it was considered
that the instrument had been signed by
the witness, though it is true that all these
formalities were performed before the
judge and the clerk or secretary of the
court, which thereupon certified that such
procedure was had in accordance with the
law.
The difference is that in the will, pursuant
to section 618 of the Code of Civil
Procedure, the person who writes the
name and surname of the testator or
testatrix does so by the order and express
direction of the one or of the other, and
this fact must be recorded in the will; but
in the matter of the signature of a
deposition, the witness, who could not or
did not know how to sign, did not need to
designate anyone to write the deponent's
name and surname, and in practice the
witness merely made a cross beside his
name and surname, written by whomever
it be.
With regard to the execution of wills in
accordance with the provisions of previous
statutes, among them those of the Civil
Code, the person or witness requested by
the testator or testatrix who was not able
or did not know how to sign,
authenticated the will by signing it with
his own name and surname, preceded by
the words "at the request of the testator
or testatrix." Paragraph 2 of article 695 of
the Civil Code contains the following
provisions bearing on the subject:
Should the testator declare that he does
not know how, or is not able to sign, one
of the attesting witnesses or another
person shall do so for him at his request,
the notary certifying thereto. This shall be
done if any one of the witnesses can not
sign.
So that, prior to the enforcement in this
country in 1901 of the Code of Civil
procedure prescribed by the old laws with
respect to the signing of a will by a
testator or testatrix who did not know how
or who could not sign, consisted in that
the person appointed and requested by
the testator or testatrix to sign in his or
her stead, such fact being recorded in the
will, merely affixed at the bottom of the
will and after the words "at the request of
the testator," his own name, surname and
paragraph.
It is not at all strange that the attorneys
of this country, imbued with and inspired
by these legal provisions, which it may
said, are traditional to them in the ideas
they have formed of the existing laws in
the matter of procedure in compliance
therewith as regards the execution and
signing of a will, should have believed
that, after the name and surname of the
testator or testatrix had been written at
the foot of the will, the person who signed
the instrument in the manner mentioned
should likewise sign the same with his
own name and surname.
If in various decisions it has been
indicated that the person who, under the
express direction of the testator or
testatrix, wrote the latter's or the former's
name and surname, should also sign the
will with his own name and surname, and
since this suggestion is not opposed or
contrary to the law, the undersigned is of
opinion that it ought not to be modified or
amended, but that, on the contrary, it the instrument by signing thereto his own
should be maintained as a requisite name and surname; and therefore, with
established by the jurisprudence of this the proper finding in this sense, and
court, inasmuch as such a requisite is not reversal of the judgment appealed from,
contrary to law, to public order, or to good that the court below should be ordered to
custom, is in consonance with a tradition proceed with the probate of the will of the
of this country, does not prejudice the decedent, Maria Salomon, in accordance
testator nor those interested in an with the law.
inheritance, and, on the contrary,
constitutes another guarantee of the truth
and authenticity of the letters with which
the name and surname of the testator of
testatrix are written, in accordance with
his or her desire as expressed in the will.
Even though the requisites referred to
were not recognized in jurisprudence and
were unsupported by any legal doctrine
whatever, yet, since it is in harmony with
the juridical usages and customs observed
in this country, it ought, in the humble
opinion of the writer, to be maintained for
the benefit of the inhabitants of the
Islands and for the sake of a good
administration of justice, because it is not
a question of a dangerous innovation or of
one prejudicial to the public good, but a
matter of the observance of a convenient,
if not a necessary detail, introduced by
the jurisprudence of the courts and which
in the present case has filed a vacancy left
by the positive written law.
The foregoing considerations, which
perhaps have not the support of better
premises, but in the opinion of the
undersigned, are conducive to the
realization of the purposes of justice, have
impelled him to believe that the
proposition should be enforced that the
witness requested or invited by the
testator or testatrix to write his or her
name to the will, should also subscribed
[G.R. No. 9150. March 31, 1915. ]
MARIANO LEANO, Petitioner-
Appellant, v. ARCADIO LEAÑO,
objector-appellee.
Vicente Llanes for Appellant.
Severo Hernando for Appellee.
SYLLABUS
1. WILLS; SIGNATURE BY MARK. — The
right of a testatrix to sign her will by
mark, executed animo testandi, sustained.
2. ID., ID. — The placing of a cross, by a
testatrix, opposite her name attached to
an instrument purporting to be her last
will and testament is a sufficient
compliance with the requirements of
section 618 of the Code of Civil Procedure
as to the form and manner in which such
instruments should be signed.
DECISION
CARSON, J. :
The evidence of record satisfactorily
discloses that Cristina Valdes, deceased,
placed her cross against her name
attached by some other person to the
instrument offered for probate which
purports to be her last will and testament,
in the presence of the three witnesses
whose names are attached to the
attesting clause, and that they attested
and subscribed the instrument in her judgment will be entered admitting the
presence and in the presence of each instrument in question to probate in
other. accordance with the prayer of the
petitioner. So ordered.
We are of the opinion that the placing of
the cross opposite her name at the
conclusion of the instrument was a
sufficient compliance with the
requirements of section 618 of the Code
of Civil Procedure, which prescribes that
except where wills are signed by some
other person than the testator in the
manner and form therein indicated, a
valid will must be signed by the testator.
The right of a testator to sign his will by
mark, executed animo testandi, has been
uniformly sustained by the courts of last
resort of the United States in construing
statutory provisions prescribing the mode
of execution of wills in language identical
with, or substantially similar to that found
in section 618 of our code, which was
taken from section 2349 of the Code of
Vermont. (Page on Wills, par. 173, and
the cases there cited in support of the
doctrine just announced.)
The trial judge was of contrary opinion,
and declined to admit the instrument to
probate as the last will and testament of
the decedent. We are of opinion. however,
that the evidence of record satisfactorily
establishes the execution of that
instrument as and for her last will and
testament in the manner and form
prescribed by law.
The judgment entered in the court below
should therefore be reversed, without
costs in this instance, and the record
remanded to the court below, where
 G.R. No. L-4067            November 29,
1951
In the Matter of the will of ANTERO (Sgd.) BIBIANA ILLEGIBLE
MERCADO, deceased. ROSARIO
GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET
AL., respondents.
Elviro L. Peralta and Hermenegildo A.
Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and
Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the
Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943.
The will is written in the Ilocano dialect
and contains the following attestation
clause:
We, the undersigned, by these presents to
declare that the foregoing testament of
Antero Mercado was signed by himself and
also by us below his name and of this
attestation clause and that of the left
margin of the three pages thereof. Page
three the continuation of this attestation
clause; this will is written in Ilocano
dialect which is spoken and understood by
the testator, and it bears the
corresponding number in letter which
compose of three pages and all them were
signed in the presence of the testator and
witnesses, and the witnesses in the
presence of the testator and all and each
and every one of us witnesses.
In testimony, whereof, we sign this
statement, this the third day of January,
one thousand nine hundred forty three,
(1943) A.D.
d.) NUMERIANO EVANGELISTA (Sgd.)
name is a sufficient signature and the
CORTES
signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the
cross is as much a signature as a
The will appears to have been signed by
thumbmark, the latter having been held
Atty. Florentino Javier who wrote the
sufficient by this Court in the cases of De
name of Antero Mercado, followed below
Gala vs. Gonzales and Ona, 53 Phil., 104;
by "A reugo del testator" and the name of
Dolar vs. Diancin, 55 Phil., 479;
Florentino Javier. Antero Mercado is
Payad vs. Tolentino, 62 Phil., 848;
alleged to have written a cross
Neyra vs. Neyra, 76 Phil., 296 and
immediately after his name. The Court of
Lopez vs. Liboro, 81 Phil., 429.
Appeals, reversing the judgement of the
It is not here pretended that the cross
Court of First Instance of Ilocos Norte,
appearing on the will is the usual
ruled that the attestation clause failed (1)
signature of Antero Mercado or even one
to certify that the will was signed on all
of the ways by which he signed his name.
the left margins of the three pages and at
After mature reflection, we are not
the end of the will by Atty. Florentino
prepared to liken the mere sign of the
Javier at the express request of the
cross to a thumbmark, and the reason is
testator in the presence of the testator
obvious. The cross cannot and does not
and each and every one of the witnesses;
have the trustworthiness of a thumbmark.
(2) to certify that after the signing of the
What has been said makes it unnecessary
name of the testator by Atty. Javier at the
for us to determine there is a sufficient
former's request said testator has written
recital in the attestation clause as to the
a cross at the end of his name and on the
signing of the will by the testator in the
left margin of the three pages of which
presence of the witnesses, and by the
the will consists and at the end thereof;
latter in the presence of the testator and
(3) to certify that the three witnesses
of each other.
signed the will in all the pages thereon in
Wherefore, the appealed decision is
the presence of the testator and of each
hereby affirmed, with against the
other.
petitioner. So ordered.
In our opinion, the attestation clause is
fatally defective for failing to state that
Antero Mercado caused Atty. Florentino
Javier to write the testator's name under
his express direction, as required by
section 618 of the Code of Civil Procedure.
The herein petitioner (who is appealing by
way of certiorari from the decision of the
Court of Appeals) argues, however, that
there is no need for such recital because
"ROSENDA
the cross written by the testator after his
G.R. No. L-15153             August 31,
1960
In the Matter of the summary
settlement of the Estate of the
deceased
ANACLETA ABELLANA. LUCIO
BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-
appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of
First Instance of Zamboanga City
admitting to probate the will of one
Anacleta Abellana. The case was originally
appealed to the Court of Appeals where
the following assignment of error is made:
The appellants respectfully submit that
the Trial Court erred in holding that the
supposed testament, Exh. "A", was signed
in accordance with law; and in admitting
the will to probate.
In view of the fact that the appeal
involves a question of law the said court
has certified the case to us.
The facts as found by the trial court are as
follows:
It appears on record that the last Will and
Testament (Exhibit "A"), which is sought
to be probated, is written in the Spanish
language and consists of two (2)
typewritten pages (pages 4 and 5 of the
record) double space. The first page is
signed by Juan Bello and under his name
appears typewritten "Por la testadora
Anacleta Abellana, residence Certificate A-
1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page
appears the signature of three (3)
instrumental witnesses Blas Sebastian,
Faustino Macaso and Rafael Ignacio, at
the bottom of which appears the signature
of T. de los Santos and below his
signature is his official designation as the
notary public who notarized the said
testament. On the first page on the left
margin of the said instrument also appear
the signatures of the instrumental
witnesses. On the second page, which is
the last page of said last Will and
Testament, also appears the signature of
the three (3) instrumental witnesses and
on that second page on the left margin
appears the signature of Juan Bello under
whose name appears handwritten the
following phrase, "Por la Testadora
Anacleta Abellana'. The will is duly
acknowledged before Notary Public
Attorney Timoteo de los Santos.
(Emphasis supplied)
The appeal squarely presents the following
issue: Does the signature of Dr. Juan A.
Abello above the typewritten statement
"Por la Testadora Anacleta Abellana . . .,
Ciudad de Zamboanga," comply with the
requirements of law prescribing the
manner in which a will shall be executed?
The present law, Article 805 of the Civil
Code, in part provides as follows:
Every will, other than a holographic will,
must be subscribed at the end thereof by
the testator himself or by the testator's
name written by some other person in his
presence, and by his express direction,
and attested and subscribed by three or
more credible witness in the presence of
the testator and of one another.
(Emphasis supplied.)
The clause "must be subscribed at the end
thereof by the testator himself or by the
testator's name written by some other
person in his presence and by his express
direction," is practically the same as the
provisions of Section 618 of the Code of
Civil Procedure (Act No. 190) which reads
as follows:
No will, except as provided in the
preceding section shall be valid to pass
any estate, real or personal, nor charge or
affect the same, unless it be in writing and
signed by the testator, or by the testator's
name written by some other person in his
presence, and by his express direction,
and attested and subscribed by three or
more credible witnesses in the presence of
the testator and of each other. . . .
(Emphasis supplied).
Note that the old law as well as the new
require that the testator himself sign the
will, or if he cannot do so, the testator's
name must be written by some other
person in his presence and by his express
direction. Applying this provision this
Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted
section 618 of the Code of Civil Procedure
that where the testator does not know
how, or is unable, to sign, it will not be
sufficient that one of the attesting
witnesses signs the will at the testator's
request, the notary certifying thereto as
provided in Article 695 of the Civil Code,
which, in this respect, was modified by
section 618 above referred to, but it is
necessary that the testator's name be
written by the person signing in his stead
in the place where he could have signed if
he knew how or was able to do so, and
this in the testator's presence and by his
express direction; so that a will signed in
a manner different than that prescribed by with the express requirement in the law
law shall not be valid and will not be that the testator must himself sign the
allowed to be probated. will, or that his name be affixed thereto by
Where a testator does not know how, or is some other person in his presence and by
unable for any reason, to sign the will his express direction.
himself, it shall be signed in the following It appearing that the above provision of
manner: the law has not been complied with, we
John Doe by the testator, Richard Doe; or are constrained to declare that the said
in this form: "By the testator, John Doe, will of the deceased Anacleta Abellana
Richard Doe." All this must be written by may not be admitted to probate.
the witness signing at the request of the WHEREFORE, the decision appealed from
testator. is hereby set aside and the petition for the
Therefore, under the law now in force, the probate of the will denied. With costs
witness Naval A. Vidal should have written against petitioner.
at the bottom of the will the full name of
the testator and his own name in one
forms given above. He did not do so,
however, and this is failure to comply with
the law is a substantial defect which
affects the validity of the will and
precludes its allowance, notwithstanding
the fact that no one appeared to oppose
it.
The same ruling was laid down in the case
of Cuison vs. Concepcion, 5 Phil., 552. In
the case of Barut vs. Cabacungan, 21
Phil., 461, we held that the important
thing is that it clearly appears that the
name of the testatrix was signed at her
express direction; it is unimportant
whether the person who writes the name
of the testatrix signs his own or not.
Cases of the same import areas follows:
(Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs. Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the
testatrix, Anacleta Abellana, does not
appear written under the will by said
Abellana herself, or by Dr. Juan Abello.
There is, therefore, a failure to comply
G.R. No. 1641            January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET
AL., defendants-appellees.
Ledesma, Sumulong and Quintos for
appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied
the last will and testament of Macario
Jaboneta, deceased, because the lower
court was of the opinion from the
evidence adduced at the hearing that Julio
Javellana, one of the witnesses, did not
attach his signature thereto in the
presence of Isabelo Jena, another of the
witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
The following is a copy of the evidence
which appears of record on this particular
point, being a part of the testimony of the
said Isabeo Jena:
Q.       1641     Who first signed the will?
A.       1641     I signed it first, and
afterwards Aniceto and the others.
Q.       1641     Who were those others to
whom you have just referred?
A.       1641     After the witness Aniceto
signed the will I left the house, because I
was in a hurry, and at the moment when I
was leaving I saw Julio Javellana with the
pen in his hand in position ready to sign
(en actitud de firmar). I believe he signed,
because he was at the table. . . .
Q.       1641     State positively whether
Julio Javellana did or did not sign as a
witness to the will.
A.       1641     I can't say certainly,
because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in
position ready to sign. I believe he signed.
Q.       1641     Why do you believe Julio
Javellana signed?
A.       1641     Because he had the pen in
his hand, which was resting on the paper,
though I did not actually see him sign.
Q.       1641     Explain this contradictory
statement.
A.       1641     After I signed I asked
permission to leave, because I was in a
hurry, and while I was leaving Julio had
already taken the pen in his hand, as it
appeared, for the purpose of signing, and
when I was near the door I happened to
turn my face and I saw that he had his
hand with the pen resting on the will,
moving it as if for the purpose of signing.
Q.       1641     State positively whether
Julio moved his hand with the pen as if for
the purpose of signing, or whether he was
signing
A.       I believe he was signing.
The truth and accuracy of the testimony of
this witness does not seem to have been
questioned by any of the parties to the
proceedings, but the court, nevertheless,
found the following facts:
On the 26th day of December, 1901,
Macario Jaboneta executed under the
following circumstances the document in
question, which has been presented for
probate as his will:
Being in the house of Arcadio Jarandilla, in
Jaro, in this province, he ordered that the
document in question be written, and
calling Julio Javellana, Aniceto Jalbuena,
and Isabelo Jena as witnesses, executed
the said document as his will. They were
all together, and were in the room where
Jaboneta was, and were present when he
signed the document, Isabelo Jena signing
afterwards as a witness, at his request,
and in his presence and in the presence of
the other two witnesses. Aniceto Jalbuena
then signed as a witness in the presence
of the testator, and in the presence of the
other two persons who signed as
witnesses. At that moment Isabelo Jena,
being in a hurry to leave, took his hat and
left the room. As he was leaving the
house Julio Javellana took the pen in his
hand and put himself in position to sign
the will as a witness, but did not sign in
the presence of Isabelo Jena; but
nevertheless, after Jena had left the room
the said Julio Javellana signed as a
witness in the presence of the testator
and of the witness Aniceto Jalbuena.
We can not agree with so much of the
above finding of facts as holds that the
signature of Javellana was not signed in
the presence of Jena, in compliance with
the provisions of section 618 of the Code
of Civil Procedure. The fact that Jena was
still in the room when he saw Javellana
moving his hand and pen in the act of
affixing his signature to the will, taken
together with the testimony of the
remaining witnesses which shows that
Javellana did in fact there and then sign
his name to the will, convinces us that the
signature was affixed in the presence of
Jena. The fact that he was in the act of
leaving, and that his back was turned
while a portion of the name of the witness
was being written, is of no importance.
He, with the other witnesses and the
testator, had assembled for the purpose of
executing the testament, and were
together in the same room for that
purpose, and at the moment when the
witness Javellana signed the document he proven in these proceedings we are of
was actually and physically present and in opinion that the statutory requisites as to
such position with relation to Javellana the execution of the instrument were
that he could see everything which took complied with, and that the lower court
place by merely casting his eyes in the erred in denying probate to the will on the
proper direction, and without any physical ground stated in the ruling appealed from.
obstruction to prevent his doing so, We are of opinion from the evidence of
therefore we are of opinion that the record that the instrument propounded in
document was in fact signed before he these proceedings was satisfactorily
finally left the room. proven to be the last will and testament of
The purpose of a statutory requirement Macario Jaboneta, deceased, and that it
that the witness sign in the presence of should therefore be admitted to probate.
the testator is said to be that the testator The judgment of the trial court is
may have ocular evidence of the identity reversed, without especial condemnation
of the instrument subscribed by the of costs, and after twenty days the record
witness and himself, and the generally will be returned to the court form whence
accepted tests of presence are vision and it came, where the proper orders will be
mental apprehension. (See Am. & Eng. entered in conformance herewith. So
Enc. of Law, vol. 30, p. 599, and cases ordered.
there cited.)
In the matter of Bedell (2 Connoly (N.Y.),
328) it was held that it is sufficient if the
witnesses are together for the purpose of
witnessing the execution of the will, and in
a position to actually see the testator
write, if they choose to do so; and there
are many cases which lay down the rule
that the true test of vision is not whether
the testator actually saw the witness sign,
but whether he might have seen him sign,
considering his mental and physical
condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66
Mo., 579.)
The principles on which these cases rest
and the tests of presence as between the
testator and the witnesses are equally
applicable in determining whether the
witnesses signed the instrument in the
presence of each other, as required by the
statute, and applying them to the facts
[G.R. No. L-23225. February 27,
1971.]
IN THE MATTER OF THE PETITION TO
PROBATE OF THE WILL OF DIGNA
MARAVILLA, HERMINIO MARAVILLA,
petitioner-appellant, and ADELINA
SAJO, legatee-appellant, v. PEDRO
MARAVILLA, ASUNCION MARAVILLA
and REGINA MARAVILLA, oppositors-
appellees, CONCEPCION KOHLHAAS
and ROSE MARY KOHLHAAS,
intervenors.
Felino A. Garcia for legatee-appellant.
Salonga, Ordoñez, Yap, Sicat &
Associates and Paredes, Poblador,
Cruz & Nazareno for Petitioner-
Appellant.
Jose Gutierrez David, Placido C.
Ramos, Augurio Abeto, Alex Mirasol
and Alex Umadhay, for oppositors-
appellees.
Jose M. Luison for intervenors.
DECISION
REYES, J.B.L., J.:
These are appeals (before Republic Act
5440) from the decision of the Court of
First Instance of Negros Occidental, in its
Special Proceeding No. 4977, denying the
probate of the will of the deceased, Digna
Maravilla. These appeals were brought to
the Court of Appeals, but said court
certified the same to this Supreme Court
on 26 May 1964, in accord with the
latter’s prior decision in Fernandez, etc.,
Et. Al. v. Maravilla, L-18799, 31 March
1964, 1 which settled the question of
appellate jurisdiction in favor of the
Supreme Court over that of the Court of
Appeals, on the appeal from the
appointment of a special co-administrator
in the same Special Proceeding No. 4977
in view of the value of the estate.
Appellant Herminio Maravilla, probate
petitioner and husband of the decedent,
died on 16 July 1966, after the case was
submitted for decision. Upon motion for
intervention filed by Concepcion Maravilla
Kohlhaas and Rose Mary Kohlhaas, this
Supreme Court allowed their intervention
on 24 July 1967, upon showing that their
interest as substitute heirs was vested
definitely upon the death of Herminio
Maravilla, and that said movants for
intervention merely adopt the pleadings
and briefs filed in behalf of the deceased
Herminio Maravilla so that the
intervention will not delay the disposition
of the case. 2 the time she affixed her signature to her
Appellees Pedro, 3 Asuncion and Regina,
all surnamed "Maravilla," who are
allegedly the brother and sisters of the
deceased Digna Maravilla and oppositors
to the probate, had moved to require the
P. C. Laboratory to submit explanations of
the photographs of the will and the
signatures thereon previously filed, 4 but
this Court, considering that such
explanation would amount to new
evidence not heard at the trial, denied the
motion on 3 August 1967. 5
Herminio Maravilla’s petition for probate
was opposed by the appellees in an
amended opposition filed in the course of
the trial in the court below and admitted
without objection. The opposition alleged
the following
grounds:jgc:chanrobles.com.ph
"a) That the deceased, Digna Maravilla,
the alleged testatrix and the instrumental
witnesses did not sign the alleged will,
each and every page thereof, in the
presence of each other;
"b) That the deceased, Digna Maravilla,
the alleged testatrix, affixed her signature
to her alleged will under undue and
improper pressure and influence and/or
duress brought to bear upon her by the
petitioner, for his own personal benefit
and advantage and that of his nieces,
Adelina Sajo and Rose Marie Kohlhaas and
his half-sister Conchita Maravilla
Kohlhaas;
"c) That the deceased, Digna Maravilla, at
alleged will was not of sound and
disposing mind;
"d) That the alleged will, now being
offered for probate had already been
revoked by the deceased, Digna
Maravilla." 6
After trial, the court below rendered
judgment, holding as unsubstantiated the
last three (3) grounds above-enumerated,
but sustaining the first, that is, that the
will was not executed in accordance with
Section 618 of Act 190, and, therefore,
denied the probate of the will.
The petitioner and one Adelina Sajro, who
was named a devisee under the
questioned will, appealed the judgment,
as aforesaid, assigning errors of fact and
law. The oppositors-appellees did not
appeal but counter-assigned errors their
brief.
There is no controversy that the late
Digna Maravilla died in Manapla, Negros
Occidental, on 12 August 1958, leaving an
extensive estate. Prior to her death, she
was a resident of Saravia, same province.
It is, likewise, undisputed that, at the time
of the probate proceedings, only one (1)
(Aquilino Mansueto) of the three (3)
attesting witnesses to the will had
survived, the two (2) others (Timoteo
Hernaez and Mariano Buenaflor) having
died previously.
The will submitted for probate, Exhibit
"A," which is typewritten in the Spanish
language, purports to have been executed
in Manila on the 7th day of October, 1944;
it consists of five (5) pages, including the
page on which the attestation clause was
completed. The purported signatures of
the testatrix appear at the logical end of
the will on page four and at the left
margin of all the other pages. The
attestation clause reads as
follows:jgc:chanrobles.com.ph
"CLAUSULA DE ATESTIGUAMIENTO
"Nosotros, TIMOTEO HERNAEZ, AQUILINO
MANSUETO y MARIANO BUENAFLOR los
abajo firmantes todos mayores de edad y
sin impedimento alguno para ser testigo
de este testamento, certificamos y
atestiguamos: Que en la fecha y lugar
arriba mencionados Da. DIGNA
MARAVILLA ha otorgado el presente
documento como su testamento y ultima
voluntad que consta de cinco paginas
utiles incluyendo esta pagina de
atestiguamiento, escrito a maquinilla en
una sola cara de cada hoja, todas
paginadas correlativamente en letras de
puño y letra de la testadora, habiendo
dicha testadora, despues de leido el
mismo en nuestra presencia, firmado por
triplicado al pie de este testamento y al
margen izquierdo de cada una de las cinco
paginas de que se compone en presencia
de todos y cada uno de nosotros que
tambien firmamos en el margen izquierdo
de cada pagina y al pie de este
atestiguamiento los unos en presencia de
los otros y todos en presencia de lo
testadora, quien en el acto del
otorgamiento y firma de este documento
se halla en plena capacidad intelectual,
amenazada ni enganada par otorgar y
firmar este testamento.
"Asi lo atestiguamos y firmamos por
triplicado de nuestro puño y letra en
Manila hoy a siete de Octubre de mil
novecientos cuarenta y cuatro."cralaw
virtua1aw library
At the bottom thereof appear the
purported signatures of Timoteo Hernaez,
Aquilino Mansueto and Mariano Buenaflor,
attesting witnesses. Their signatures
appear also on the left margin of all the
five (5) pages. The paging of the will is by
handwritten words, such as "Pagina
Primera," "Pagina Segunda," etc., written
at the top of each page. On the lower half
of the third page, before the name
"CONCEPCION P. MARAVILLA," is the
typewritten word "hermana," which was
crossed out, and over it was handwritten
the word "cuñada," bearing, at the left
hereof, the initials "D. M."cralaw
virtua1aw library
After the legacies in favor of herein
appellant Adelina Sajo, a niece of Digna
Maravilla, the latter’s sister-in-law,
Concepcion P. Maravilla de Kohlhaas, and
Concepcion’s daughter, Rose Mary
Kohlhaas, the will named appellant
Herminio Maravilla as universal heir and
executor. In case of the heir’s death, or if
he should not become heir for any reason,
he is to be substituted by the legatee
Adelina Sajo in one-half of the properties
bequeathed, the other half to pass
collectively to legatees Concepcion P.
Maravilla and the daughter of the latter,
Rose Mary Kohlhaas. All previous wills are
declared revoked.
In view of the trial court’s decision of 8
February 1960 (Record on Appeal, pages
25-51) refusing probate of the will, the
instituted heir, Herminio Maravilla, and
the legatee, Adelina Sajo, perfected their
appeal, assigning as errors the findings of
the trial court that (a) instrumental
witness Aquilino Mansueto did not actually
see Digna Maravilla sign the will; (b) that
Digna Maravilla was not present when
Mansueto signed the will as witness; (c)
that Mansueto "most probably" did not
see Mariano Buenaflor sign as witness to
the will; (d) the testimony of attorney
Manuel Villanueva on the due execution of
Digna Maravilla’s testament was biased
and not deserving of credit; and (e) in
refusing probate to the alleged will for not
having been executed with the requisites
prescribed by Section 618 of Act 190.
At the hearing before the court a quo,
only one of the three instrumental
witnesses, Col. (ret.) Aquilino Mansueto,
appeared and testified, inasmuch as the
other two witnesses (Timoteo Hernaez
and Mariano Buenaflor) concededly died
prior to the trial of the case. Col.
Mansueto identified his own signature and
those of Dr. Timoteo Hernaez and of
Digna Maravilla, and asserted that the
latter did sign in the presence of all three
witnesses and attorney Villanueva; 7 that
Hernaez signed in his presence and in the
presence of the other witnesses and of
Digna Maravilla and that present at the
signing were "Dr. Timoteo Hernaez, Mr.
Mariano Buenaflor, attorney Manuel
Villanueva and both Herminio Maravilla
and Mrs. Digna Maravilla, (the testatrix)
and identified his signature and those of
Digna and Hernaez 8 although,
subsequently, the witness admitted that
he could not remember very well whether
Mr. Maravilla was there at the time he
signed the will. The witness explained that
he could not remember some details
because fourteen years had elapsed, and
when he signed as a witness, he did not
give it any importance and because of the
time he (Col. Mansueto) was very worried
because of rumours that the Japanese
Kempeitai would arrest officers of the
USAFFE who did not want to collaborate. 9
Colonel Mansueto’s testimony was
supported by that of the husband of the
testatrix, Herminio Maravilla, and of
attorney Manuel Villanueva. Herminio
Maravilla’s evidence is that a week before
7 October 1944 his wife, Digna Maravilla,
told him of her desire to "renew" her will
because of the critical period in Manila
before the liberation; 10 he invited
Buenaflor, Hernaez and Mansueto to
attest to the will; 11 sent his messenger,
Mariano Buenaflor, to ask attorney Manuel
Villanueva to come to his house at Mabini,
Ermita, Manila, in order to prepare the
will; 12 at his wife’s request, he gave the
list of properties to Villanueva; 13 he
knew that the will was executed in the
dining room while he remained in the
sala; 14 and Villanueva, Mansueto,
Hernaez and Buenaflor were in his house
in the morning of 7 October 1944 and sat
with his wife around the table in the
dining room, with Villanueva at one end,
Digna beside him and the witnesses facing
each other; 15 and after the signing they
had lunch, at his invitation, and when they
were eating, petitioner Maravilla saw the
three (3) copies of the will on the dining
table. 16 However, he did not see there
sign. 17
Attorney Manuel Villanueva, as third
witness for the proponent asserted that he
had been the lawyer of the Maravillas;
that 5 or 6 days before 7 October 1944 he
had been summoned through Mariano
Buenaflor to the house of the Maravillas at
222 Mabini, Ermita, Manila, and there met
Digna who requested him to draft a new
will, revoking her old one, to include as
additional beneficiaries Adelina Sajo,
Concepcion Maravilla, and the latter’s
youngest daughter, Rose Mary Kohlhaas,
who lived with her (Digna) and whom she
considered as her real children, having
cared for them since childhood. Digna
gave Villanueva instructions concerning
the will, and handed him her old will and a
handwritten list of the certificates of title
of her properties, which list she asked and
obtained from her husband. Before
leaving, Villanueva asked Digna to look for
three witnesses; their names were
furnished him two or three days later and
he sent word that the will could be
executed on 7 October 1944 (as it actually
was); on that day he brought one original
and 2 copies with him, and handed them
to Digna; she read the document and
while doing so the witnesses Mansueto,
Hernaez and Buenaflor came. Villanueva
talked with them and satisfied himself that
they were competent, whereupon all
proceeded to the dining room table.
Attorney Villanueva sat at the head
thereof, Digna at his right, and Hernaez at
the right of Digna; at his left was first
Mansueto and then Buenaflor. At the
lawyer’s behest Digna Maravilla read the
will in the presence of the witnesses; after
reading she called his attention to a
clerical error on page 3, at the second to
the last line of paragraph 9, where
Concepcion Maravilla was designated as
"hermana" ; the word was cancelled by
the testatrix who wrote "cuñada" above
the cancelled word, and placed her initials
"D. M." beside it. She also wrote on top of
each page the words "Pagina primera,"
"Pagina Segunda" and so on, upon
Villanueva’s instructions, and then Digna
and the witnesses signed in the presence
of one another and of attorney Villanueva.
18 The latter did not ask the husband
(Herminio) to join the group when the will
was executed, and Herminio remained
near the window in the sala. 19 Digna
appeared to the witness very healthy and
spoke in Spanish intelligently. The signing
ended around 12:30 p.m., and after it all
ate lunch. 20
Upon the evidence, the trial judge
concluded that Mansueto did not actually
see Digna Maravilla sign the will in
question, basing such conclusion upon the
fact that while Mansueto positively
identified his own signature ("I identify
this as my signature") but not that of the
testatrix, his five answers to the questions
of counsel, in reference thereto, being
"this must be the signature of Mrs. Digna
Maravilla."cralaw virtua1aw library
In our opinion, the trial court’s conclusion
is far fetched, fanciful and unwarranted. It
was but natural that witness Mansueto
should be positive about his own
signature, since he was familiar with it. He
had to be less positive about Digna
Maravilla’s signature since he could not be
closely acquainted with the same: for
aught the record shows, the signing of the
will was the only occasion he saw her
sign; he had no opportunity to study her
signature before or after the execution of
Exhibit "A." Furthermore, he witnessed
Digna’s signing not less than fourteen
years previously. To demand that in
identifying Digna’s signature Mansueto
should display a positiveness equal to the
certainty shown by him in recognizing his
own, exceeds the bounds of the
reasonable. The variation in the
expressions used by the witness is the
best evidence that he was being candid
and careful, and it is a clear badge of
truthfulness rather than the reverse.
The trial court’s error gains no support
from Mansueto’s statement on cross-
examination that "I remember and (I)
signed the will in the presence of all the
witnesses and in the presence of attorney
Villanueva" (page 29, Volume 1, T.s.n.,
Amago). In the absence of an assurance
that no one else was present, this
assertion does not really contradict
Mansueto’s testimony in chief that "I have
read the entire document before I signed
it in the presence of the other witnesses,
Digna Maravilla and Attorney Villanueva"
(t.s.n., Amago, Volume 1, pages 18-19).
It is well to note that the cross examiner
did not ask Mansueto if no one else
besides those mentioned by him had seen
him sign. Any contradiction inferred from
both statements is purely conjectural; it
did not come from the witness and is
insufficient to impeach his veracity, the
difference in the answers being due to no
more than an accidental lapse of memory.
A will may be allowed even if some
witnesses not remember having attested
it, if other evidence satisfactorily show
due execution (V. Act 190, Section 632),
and that failure of witness to identify his
signature does not bar probate. 21
That Mansueto, Hernaez and Buenaflor,
together with the testatrix and the lawyer,
sat next to one another around one table
when the will was signed is clearly
established by the uncontradicted
testimony of both attorney Villanueva and
Herminio Maravilla; and that detail proves
beyond doubt that each one of the parties
concerned did sign in the presence of all
the others. It should be remembered, in
this connection, that the test is not
whether a witness did see the signing of
the will but whether he was in a position
to see if he chose to do so. 22
The trial court rejected the evidence of
both Herminio Maravilla and Manuel
Villanueva, giving as a reason that they
were biased and interested in having the
probate succeed. The reasoning is not
warranted: for Herminio Maravilla
certainly stood to gain more under the
previous will of his wife (Exhibit "G")
where he was made the sole beneficiary,
As to attorney Villanueva, while he had
been a friend of Herminio from boyhood,
he also had been the family lawyer, and
his intervention in the execution of the will
of one of his clients became inevitable, for
it is not to be expected that the testatrix
should call upon a stranger for the
purpose. If Villanueva wished to perjure in
favor of Herminio, all he needed was to
color his testimony against the due
execution of the will (Exhibit "A") and not
in favor thereof, since, as previously
observed, Digna’s first will (Exhibit "G")
was more advantageous to the widower.
We find it difficult to understand the trial
court’s distrust of a lawyer who did no
more than discharge his professional duty,
or its readiness to attribute improper
motives to proponent’s witnesses. This
Court, in Sotelo v. Luzan, 59 Phil. 908,
has remarked that — Buenaflor stayed with him at his outpost
"It is hardly conceivable that any attorney
of any standing would risk his professional
reputation by falsifying a will and then go
before a court and give false
testimony."cralaw virtua1aw library
And in the Fernandez v. Tantoco, 49 Phil.
380, 385, We
ruled:jgc:chanrobles.com.ph
"‘In weighing the testimony of the
attesting witnesses to a will, the
statements of a competent attorney, who
has been charged with the responsibility
of seeing to the proper execution of the
instrument, is entitled to greater weight
than the testimony of a person casually
called to participate in the act, supposing
of course that no motive is revealed that
should induce the attorney to prevaricate.
The reason is that the mind of the
attorney, being conversant with the
requisites of proper execution of the
instrument, is more likely to become fixed
on details, and he is more likely than
other persons to retain those incidents in
his memory.’" (Italics supplied)
Appellees endeavoured to sustain the
court’s refusal to probate the will by
referring to the evidence of their witness
Marino Tupas, a man of "no permanent
job", 23 who narrated that on the last
week of September, 1944 one Mariano
Buenaflor had been introduced to him by
one Lt. Garaton at his guerrilla outpost in
Montalban and described as a man wanted
by the Japanese. Tupas’ patently
exaggerated testimony is that this
camp until January, 1945, living and
sleeping with him, and was never for a
single moment out of his sight. 24 Why a
civilian refugee should remain at a
guerrilla outpost for four months; without
engaging in any particular helpful activity
on his part, was not explained. Shown
photographs and asked to identify
Buenaflor, Tupas hedged by pleading that
the Buenaflor who stayed with him had a
long beard. Thus, oppositor-appellees’
reverse alibi for the instrumental witness,
Mariano Buenaflor, was not only patently
mendacious but did not establish any
reliable connection between the
instrumental witness of Digna’s will and
the Buenaflor who, according to Tupas,
stuck to him as a burr in 1944. No wonder
the trial court gave no credit to such
evidence.
Oppositors’ attempts to establish that the
testatrix Digna Maravilla was mentally
incompetent to validly execute the will in
question met no better fate in the court
below. They introduced one Eufrocina
Berja who qualified Digna Maravilla as
insane because she saw Digna Maravilla
acting strangely one morning in 1921 (23
years before the will was executed). In
Berja’s own words — by his monetary interest, thus leading to
"Would you not call a person insane who
is waving a bunch of flowers and singing
along a road, especially taking into
consideration their reputation in the
Community?" (t.s.n., 21 May 1959, page
19)
Even if to this ridiculous appraisal were to
be added the fact that (according to this
witness) Digna saw her in 1946, but would
not answer her questions and "was in a
deep thought (sic) and her tongue was
coming out of her mouth" (Do., pages 14-
15), her evidence would certainly not
justify a finding that Digna Maravilla was
not competent to execute the testament
in 1944. By Berja’s standards, any one
could be held insane.
Nor is the case for the oppositors
improved by the evidence of their witness
Eleazar Lopez, who asserted having
visited his aunt, Digna Maravilla (whom he
had not seen since he was four years old),
two days after the first bombing of Manila
by the American planes in September,
1944. Lopez claimed to have seen Digna
on that occasion laughing and crying and
then staring blankly at the ceiling, without
recognizing the witness; and that he
visited her again toward mid-October of
the same year and she had worsened. 25
Coming from a nephew who expected to
succeed if the will in question * were
denied probate, and who sought to
become administrator of the estate, even
offering to resign from his position in the
government if appointed, 26 this
testimony of Lopez was evidently colored
its correct discrediting by the trial court.
His recollection after 15 years of the
alleged symptoms of his aunt is very
suspicious, as it does not even appear
that Lopez at the time bothered to inquire
from other persons what caused his aunt’s
alleged abnormal condition. Moreover, the
court’s duty to reconcile conflicts of Concepcion, C.J., Dizon, Zaldivar, Castro,
evidence should lead it to hold that the Fernando, Teehankee, Barredo, Villamor
symptoms described by Lopez were due to and Makasiar, JJ., concur.
a temporary disturbance of the nerves
caused by the unsettling effect of a
bombardment not previously experienced,
compatible with the due execution of the
will on 7 October 1944. As between the
testimony of Lopez and that of attorney
Villanueva, who repeatedly visited and
talked to the testatrix around the time her
will was executed, We have no hesitation
in accepting the latter’s view that Digna
Maravilla was competent to make the will
when it was signed. The law itself declares
that —

"To be of sound mind, it is not necessary

that the testator be in full possession of all
his reasoning faculties or that his mind be
wholly unbroken, unimpaired or
unshattered by disease, injury or other
cause." (Civil Code, Article 799; Bugnao v.
Ubag, 14 Phil. 163.)

We are satisfied that the preponderance of

evidence is to the effect that the
testament, Exhibit "A," was duly executed
by a qualified testatrix and competent
witnesses, in conformity with the statutory
requirements.

IN VIEW OF THE FOREGOING, the decree

of the court below denying probate of the
1944 will of Digna Maravilla (Exhibit "A")
is reversed and the said testament is
hereby ordered probated. Let the records
be returned to the Court of origin for
further proceedings conformable to law.
Costs against oppositors-appellees.
G.R. No. L-5971            February 27,
1911
BEATRIZ NERA, ET AL., plaintiffs-
appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for
appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in
this case as to the due execution of the
instrument propounded as a will in the court
below, is whether one of the subscribing
witnesses was present in the small room
where it was executed at the time when the
testator and the other subscribing witnesses
attached their signatures; or whether at that
time he was outside, some eight or ten feet
away, in a large room connecting with the
smaller room by a doorway, across which
was hung a curtain which made it impossible
for one in the outside room to see the
testator and the other subscribing witnesses
in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of
opinion that this subscribing witness was in
the small room with the testator and the
other subscribing witnesses at the time
when they attached their signatures to the
instrument, and this finding, of course,
disposes of the appeal and necessitates the
affirmance of the decree admitting the
document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have
considered the determination of this
question of fact of vital importance in the
determination of this case, as he was of
opinion that under the doctrine laid down in
the case of Jaboneta vs. Gustilo  (5 Phil.
Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room
when the testator and the other describing
witnesses signed the instrument in the inner
room, had it been proven, would not be
sufficient in itself to invalidate the execution
of the will. But we are unanimously of
opinion that had this subscribing witness
been proven to have been in the outer room
at the time when the testator and the other
subscribing witnesses attached their
signatures to the instrument in the inner
room, it would have been invalid as a will,
the attaching of those signatures under
circumstances not being done "in the
presence" of the witness in the outer room.
This because the line of vision from this
witness to the testator and the other
subscribing witnesses would necessarily
have been impeded by the curtain
separating the inner from the outer one "at
the moment of inscription of each
signature."
In the case just cited, on which the trial
court relied, we held that:
The true test of presence of the testator and
the witnesses in the execution of a will is not
whether they actually saw each other sign,
but whether they might have been seen
each other sign, had they chosen to do so,
considering their mental and physical
condition and position with relation to each
other at the moment of inscription of each
signature.
But it is especially to be noted that the
position of the parties with relation to each
other at the moment of the subscription of
each signature, must be such that they may
see each other sign if they choose to do so.
This, of course, does not mean that the
testator and the subscribing witnesses may
be held to have executed the instrument in
the presence of each other if it appears that
they would not have been able to see each
other sign at that moment, without changing
their relative positions or existing conditions.
The evidence in the case relied upon by the
trial judge discloses that "at the moment
when the witness Javellana signed the
document he was actually and physically
present and in such position with relation to
Jaboneta that he could see everything that
took place by merely casting his eyes in the
proper direction and without any physical
obstruction to prevent his doing so." And the
decision merely laid down the doctrine that
the question whether the testator and the
subscribing witnesses to an alleged will sign
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper
at the moment of its subscription by each of
them, but that at that moment existing
conditions and their position with relation to
each other were such that by merely casting
the eyes in the proper direction they could
have seen each other sign. To extend the
doctrine further would open the door to the
possibility of all manner of fraud,
substitution, and the like, and would defeat
the purpose for which this particular
condition is prescribed in the code as one of
the requisites in the execution of a will.
The decree entered by the court below
admitting the instrument propounded
therein to probate as the last will and
testament of Pedro Rimando, deceased, is
affirmed with costs of this instance against
the appellant.
G.R. No. L-26545 December 16, 1927
Testate Estate of Florencia R. Mateo.
PERFECTO GABRIEL, petitioner-appellee,
vs.
RITA R. MATEO, ET AL., opponents-
appellants.
R. Gonzales Lloret, Carlos S. Basa, Thomas
Cary Welch and Camus, Delgado and Recto
for appellants.
The appellee in his own behalf.
AVANCEÑA, C. J.:
The judgment appealed from allowed the will
of Florencia Mateo dated February 6, 1923,
composed of two used sheets to probate.
The will appears to be signed by the
testatrix and three witnesses on the left
margin of each of the sheets, by the
testatrix alone at the bottom, and by the
three witnesses after the attestation clause.
The testatrix died on August 13, 1925.
Opposition to such probate was filed by Rita
Mateo, the testatrix's sister, and by other
relatives.
The three attesting witnesses to this will,
testifying in this case, declared that the
signature of the testatrix were written in
their presence and that they signed their
names in the presence of the testatrix and
of each other.
The testatrix from girlhood knew how to sign
her name and did so with her right hand;
but as the right side of her body later
became paralyzed, she learned to sign with
her left hand and for many years thereafter,
up to the time of her death, she used to sign
with that hand. Opponents allege that
Florencia Mateo did not sign this will.
There are three salient arguments among
those adduced by the opponents in support
of their opposition.
The attesting witnesses testified that the
testratrix signed before they did. The
signatures of the testatrix on the left margin
of the two sheets of the will are between the
signatures of the two witnesses Vidal Rañoa
and Julio Gabriel, and below her surname is
the signature of the other witness Felicisimo
Gabriel. The signatures of Vidal Rañoa and
Julio Gabriel are on a level with each other,
while that of Felicisimo Gabriel is found a
little lower down. The testatrix's signatures
start on the line with Felicisimo Gabriel's
signature, but tend to rise and her surname
reaches a level with Julio Gabriel's signature.
It is said that this direction of the testatrix's
signature was due to the fact that when it
was written Felicisimo Gabriel's signature
was already there, and so she had to write
her surname upwards in order to avoid
interfering with that Felicisimo Gabriel,
which would have been the case had she
continued on the horizontal line on which
she had written her first name. From this
detail it is pretended to draw the inference
that the attesting witnesses signed before
testatrix, contrary to their testimony that
she singed before they did. This deduction,
however, is unnecessary. It may be inferred
with equal, if not greater, logic that the
testatrix signed before him, and when it
came to the witness Gabriel's turn, he,
finding the space below the testatrix
signature free, signed his name there. On
the other hand, it may be noted that the
testatrix's other signature at the bottom of
the will also shows a more or less marked
tendency to rise, notwithstanding the fact
that there was no signature with which she
might interfere if she continued to write in a
straight horizontal line. Furthermore, if, as
the opposition alleges, the testatrix's
signature is not genuine and was placed
there by another person, it is strange that
the latter should have done so in such a way
as to write it above Gabriel's signature while
following the horizontal line, when this could
have been avoided by simply putting it a
little higher. And this may be attributed to
carelessness in the first case, but it cannot
be so explained in the second.
Attention is also called to the apparently
different kinds of ink used by the testatrix in
her signature and by the attesting
witnesses. Really an examination of these
signature reveals a somewhat deeper
intensity of ink in the signature of the
testatrix than in those of the attesting
witnesses. It is alleged that this
circumstance cannot be reconciled with the
declaration of the attesting witnesses that
they used the same pen and ink as the
testatrix. But, only one of these witnesses
declared this. The other one was not sure of
it and said that he said that he did not
perfectly remember this detail. The third
scarcely made reference to this particular.
At all events, this apparent difference in ink
may be merely
due — supposing that the same ink and pen
were used — to the difference in pressure
employed in writing these signatures, as is
reasonable to suppose when we consider
that the testatrix was a paralytic and wrote
with her left hand; or it may have been due
to the fact that the attesting witnesses
dipped lightly in the ink while the testatrix
dipped the pen so as to take up the ink from
the bottom of the well. To bring out this
irregularity, the opposition presented the
expert Del Rosario who asserted, among
other things, that the signature of the
testatrix is more recent than that of the
attesting witnesses. If this opinion is correct
and if, as alleged, the testatrix's signature is
forged, it would mean that the forgers, after
having prepared the will and made the
witnesses sign, allowed sometime to elapsed
before forging the testatrix's signature,
which supposition is not all probable, nor
has it been explained.lawphi1.net
At all events, even admitting that there is a
certain question as to whether the attesting
witnesses signed before or after the
testatrix, or whether or not they signed with
the same pen and ink, these are details of
such trivial importance, considering that this
will was signed two years before the date on
which these witnesses gave their testimony,
that it is not proper to set aside the will for
this reason alone.
The attesting witnesses to this will, who
testified also as witnesses at the trial of this
case, showed themselves to be intelligent
and honest, one of them being a lawyer of
twelve year's practice, and there is no
reason to reject their testimony, and to
suppose that they were untruthful in
testifying, and that they falsified the will in
question.
Lastly, attention is called to the
unreasonableness of the testatrix in not
leaving anything to the principal opponent,
her sister Rita Mateo, and to her nephews
and nieces, to whom she had been so
affectionate during life. But as to the
affectionate relations between the deceased
and the opponents, only the opponent Rita
Mateo testified, and she only stated that she
was on good terms with her sister during the
latter's lifetime; that the said sister used to
give her a sack or some gantas of rice, and,
a times, a little money; that she held all her
nephews and nieces in equal regard. But
even supposing that this were so, there is
nothing strange in the testatrix having left
nothing to the opponents, or in her having
left all of her estate to the only heir
instituted in her will, Tomas Mateo, who is
also one of her nieces. And not only is it not
strange, but it seems reasonable, since,
according to the evidence of the testatrix
when the former was but 3 years old, and
from then on up to the time of her death
had never been separated from her.
The opposition presented Doctor Banks as
expert. He testified that the signatures of
the testatrix in the will are not genuine. The
petitioner, on the other hand, presented
another expert, Pedro Serrano Laktao, who
affirmed that these signatures are genuine.
But, over the testimony of these experts, we
have the categorical and positive declaration
of veracious witnesses who affirm that these
signatures were written by the testatrix
herself.
The judgment appealed from is affirmed,
with costs against the appellants. So
ordered.
Johnson, Villamor, Romualdez and Villa-
Real, JJ., concur.
 
 
 
Separate Opinions
 
JOHNS, J.,  dissenting:
Appellants assign the following errors:
FIRST ERROR
The Honorable Court a quo  erred in
imputing as theory of the oppositors "that
the deceased did not know how to write
except with her right hand and that due to
sickness of paralysis during the last few
years of her life she became physically
unable to hold the pen and to write her
name and surname.
SECOND ERROR
The Honorable Court a quo  erred in finding
that the three disputed signatures on the
two pages of Exhibit A are signatures of
Florencia R. Mateo based on mere
"possibility," and in not holding them
spurious as shown by specific, unrebutted
findings of Drs. Charles S. Banks and Jose I.
del Rosario.
THIRD ERROR
The Honorable Court a quo  erred in giving
credit to the testimonies of the so-called
instrumental witnesses in Exhibit A.
FOURTH ERROR
The Court a quo  erred in admitting Exhibit A
to probate.
Hence, the only questions presented are
question of fact. Time and experience has
taught us that but little, if anything, is ever
accomplished by writing a dissenting opinion
on such questions. Be that as it may, this is
one case in which we feel that it is our duty
to dissent and to state the reasons why.
The decisive question in this case is whether
or not the signatures of Florencia R. Mateo
both to the body of the will and on the
margin of the pages are true and genuine. It
must be admitted that if it be a fact that her
signature to the body of the will is true and
genuine, and that her signatures on the
margin of the pages are not true and
genuine, then the will in question is null and
void.
In the trial of the case in the court below,
much evidence was introduced for the
oppositors tending to show that neither one
of the signatures of Florencia R. Mateo
appearing on the will were true and genuine,
and both Drs. Charles S. Banks and Jose I.
del Rosario so testified and gave their
reasons why. Enlarged photographs of her
signatures were introduced in evidence
which were admitted to be true and genuine,
and of her signatures to the will, and a
comparison and detailed analysis was made
of the differences between them, both as to
the character and formation of the letters of
her name, the length and height of the
letters, and the space between them, and
the length and the slant of the signatures,
from which Doctor Banks, in particular,
testified that signatures of Florencia R.
Mateo to the will were forgeries, and that
her three respective signatures on the will
were not made at the same time or with the
same pen or ink. In that particular, his
testimony was corroborated by that of Jose
I. del Rosario.
We have been taught that mathematics,
chemistry and photography are exact
sciences. It appears from an ocular
inspection and without the aid of even a
magnifying glass that there is a very marked
difference between the signature of
Florencia R. Mateo to the body of the will
and as it appears on the margin of the
pages of the will, both as to the character
and the height, length and slant of the
signatures, all of which can be seen and
detected with the naked eye without the aid
of an expert or a photographic enlargement
of the letters. It is also apparent to the
naked eye that the three respective
signatures of Florencia R. Mateo appearing
on the will were each made with different
ink, and that they were all made with
different ink than that used by the witnesses
to the will. It is also apparent to the naked
eye that each of her signatures as they
appear on the margin of the will were made
over and above and, hence, appear the
signature of the witness J. Gabriel.
It is true that the will upon its face appears
to have been executed with all of the
required legal formalities and that the
witnesses to the will testified that the
signatures of the deceased were true and
genuine. Be that as it may, both chemistry
and photography are an exact science, and
all of that oral evidence is flatly contradicted
by that of both chemistry and photography,
in addition to all which, it is apparent to the
naked eye and without the aid of either
science, that the signatures in question were
not made at the same time, and that the
two signatures appearing on the margin of
the will were made after, over and above
the name of the witness J. Gabriel.
The will recites that Florencia R. Mateo is
"sixty-eight years of age," and it purports to
have been executed on February 6, 1923,
and the record is conclusive that she was
born February 22, 1850, and that at the
time of the alleged execution of the will, she
was nearly 73 years of age. It also appears
that the will in question was prepared by
attorney Perfecto Gabriel, was executed in
his office, and that by its terms, he was
named as the sole executor, and that
although he was called as a witness on a
minor point, he was not questioned and did
not testify as to how and when the will was
executed, or by whom it was signed or as to
the genuiness of either of the signatures of
Florencia R. Mateo, all of which are the very
storm center of this contest. Perfecto Gabriel
having prepared the will which was executed
in his own office, it is strange, indeed, and
to say the least very suspicious, that he was
not called as a witness to testify about the
questioned signatures and as to whether or
not they were true and genuine.
We are not prepared to say as to whether all
of the signatures of Florencia R. Mateo as
they appear on the will are forgeries, but we
are clearly of the opinion that her signatures
as they appear on the margin of the pages
of the will are not true and genuine, and
that they were not made at the same time
or place or by the same person as her
signature which appears to the body of the
will. In either event the will in question was
never legally executed by Florencia R.
Mateo, and is therefore, null and void.
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL
GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of
the Court of Appeals, First
Division,1 promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the
decision of the Court of First Instance of
Rizal dated December 15, 1964 and allowed
the probate of the last will and testament of
the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein
private respondent Lutgarda Santiago filed a
petition with the Court of First Instance of
Rizal docketed as Special Proceedings No.
3617, for the probate of a will alleged to
have been executed by the deceased Isabel
Gabriel and designating therein petitioner as
the principal beneficiary and executrix.
There is no dispute in the records that the
late Isabel Andres Gabriel died as a widow
and without issue in the municipality of
Navotas, province of Rizal her place of
residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876.
It is likewise not controverted that herein
private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are
nieces of the deceased, and that private
respondent, with her husband and children,
lived with the deceased at the latters
residence prior an- d up to the time of her
death.
The will submitted for probate, Exhibit "F",
which is typewritten and in Tagalog, appears
to have been executed in Manila on the 15th
day of April, 1961, or barely two (2) months
prior to the death of Isabel Gabriel. It
consists of five (5) pages, including the
pages whereon the attestation clause and
the acknowledgment of the notary public
were written. The signatures of the
deceased Isabel Gabriel appear at the end of
the will on page four and at the left margin
of all the pages. The attestation clause,
which is found on page four, reads as
follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o
testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng
aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon
(Five Pages) pati na ang dahong ito, na siya
niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan
ng nasabing testadora na si Isabel Gabriel
ang nasabing testamento sa ibaba o ilalim
ng kasulatan na nasa ika apat na dahon
(page four) at nasa itaas ng patunay naming
ito, at sa kaliwang panig ng lahat at bawat
dahon (and on the left hand margin of each
and every page), sa harap ng lahat at bawat
isa sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing testadora, at
sa harap ng lahat at bawat isa sa amin, sa
ilalim ng patunay ng mga saksi at sa
kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading
"Pangalan", are written the signatures of
Matilde D. Orobia, Celso D. Gimpaya and
Maria R. Gimpaya, and opposite the same,
under the heading "Tirahan", are their
respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12
Dagala St., Navotas, Rizal, for the two
Gimpayas. Their signatures also appear on
the left margin of all the other pages. The
WW is paged by typewritten words as
follows: "Unang Dahon" and underneath
"(Page One)", "Ikalawang Dahon" and
underneath "(Page Two)", etc., appearing at
the top of each page.
The will itself provides that the testatrix
desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance
with the rites of the Roman Catholic Church,
all expenses to be paid from her estate; that
all her obligations, if any, be paid; that
legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago,
her brother Santiago Gabriel, and her
nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester,
Andres, all surnamed Gabriel, and
Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago.
To herein private respondent Lutgarda
Santiago, who was described in the will by
the testatrix as "aking mahal na pamangkin
na aking pinalaki, inalagaan at minahal na
katulad ng isang tunay na anak" and named
as universal heir and executor, were
bequeathed all properties and estate, real or
personal already acquired, or to be acquired,
in her testatrix name, after satisfying the
expenses, debts and legacies as
aforementioned.
The petition was opposed by Rizalina Gabriel
Gonzales, herein petitioner, assailing the
document purporting to be the will of the
deceased on the following grounds:
1. that the same is not genuine; and in the
alternative
2. that the same was not executed and
attested as required by law;
3. that, at the time of the alleged execution
of the purported wilt the decedent lacked
testamentary capacity due to old age and
sickness; and in the second alternative
4. That the purported WW was procured
through undue and improper pressure and
influence on the part of the principal
beneficiary, and/or of some other person for
her benefit.
Lutgarda Santiago filed her Answer to the
Opposition on February 1, 1962. After trial,
the court a quo rendered judgment, the
summary and dispositive portions of which
read:
Passing in summary upon the grounds
advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to
support the contentio that the purported will
of the deceased was procured through
undue and improper pressure and influence
on the part of the petitioner, or of some
other person for her benefit;
2. That there is insufficient evidence to
sustain the contention that at the time of
the alleged execution of the purported will,
the deceased lacked testamentary capacity
due to old age and sickness;
3. That sufficient and abundant evidence
warrants conclusively the fact that the
purported will of the deceased was not
executed and attested as required by law;
4. That the evidence is likewise conclusive
that the document presented for probate,
Exhibit 'F' is not the purported win allegedly
dictated by the deceased, executed and
signed by her, and attested by her three
attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document
presented for probate as the last wig and
testament of the deceased Isabel Gabriel is
here by DISALLOWED.
From this judgment of disallowance,
Lutgarda Santiago appealed to respondent
Court, hence, the only issue decided on
appeal was whether or not the will in
question was executed and attested as
required by law. The Court of Appeals, upon
consideration of the evidence adduced by
both parties, rendered the decision now
under review, holding that the will in
question was signed and executed by the
deceased Isabel Gabriel on April 15, 1961 in
the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya
and Maria Gimpaya, signing and witnessing
the document in the presence of the
deceased and of each other as required by
law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved
for reconsideration 3 of the aforesaid
decision and such motion was opposed 4 by
petitioner-appellant Lutgarda Santiago.
Thereafter. parties submitted their
respective Memoranda, 5 and on August 28,
1973, respondent Court, Former Special
First Division, by Resolution 6 denied the
motion for reconsideration stating that:
The oppositor-appellee contends that the
preponderance of evidence shows that the
supposed last wig and testament of Isabel
Gabriel was not executed in accordance with
law because the same was signed on several
occasions, that the testatrix did not sign the
will in the presence of all the instrumental
witnesses did not sign the will in the
presence of each other.
The resolution of the factual issue raised in
the motion for reconsideration hinges on the
appreciation of the evidence. We have
carefully re-examined the oral and
documentary evidence of record, There is no
reason to alter the findings of fact in the
decision of this Court sought to be set
aside. 7
In her petition before this Court, oppositor
Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion
and/or acted without or in excess of its
jurisdiction in reverssing the findings of fact
and conclusions of the trial court. The Court,
after deliberating on the petition but without
giving due course resolved, in the Resolution
dated Oct. 11, 1973 to require the
respondents to comment thereon, which
comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues
raised and the arguments adduced in the
petition, as well as the Comment 8 of private
respondent thereon, We denied the petition
by Resolution on November 26, 1973, 9 the
question raised being factual and for
insufficient showing that the findings of fact
by respondent Court were unsupported by
substantial evidence.
Subsequently, or on December 17, 1973,
petitioner Rim Gabriel Goes fried a Motion
for Reconsideration 10 which private
respondent answered by way of her
Comment or Opposition 11 filed on January
15, 1974. A Reply and Rejoinder to Reply
followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.
The petitioner in her brief makes the
following assignment of errors:
I. The respondent Court of Appeals erred in
holding that the document, Exhibit "F" was
executed and attested as required by law
when there was absolutely no proof that the
three instrumental witnesses were credible
witness
II. The Court of Appeals erred in reversing
the finding of the lower court that the
preparation and execution of the win Exhibit
"F", was unexpected and coincidental.
III. The Court of Appeals erred in finding
that Atty, Paraiso was not previously
furnished with the names and residence
certificates of the witnesses as to enable him
to type such data into the document Exhibit
"F".
IV. The Court of Appeals erred in holding
that the fact that the three typewritten lines
under the typewritten words "Pangalan" and
"Tinitirahan" were left blank shows beyond
cavil that the three attesting witnesses were
all present in the same occasion.
V. The Court of Appeals erred in reversing
the trial court's finding that it was incredible
that Isabel Gabriel could have dictated the
wilt Exhibit "F , without any note or
document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing
the finding of the trial court that Matilde
Orobia was not physically present when the
Will Exhibit "F" was allegedly signed on April
15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and
Maria Gimpaya.
VII. The Court of Appeals erred in holding
that the trial court gave undue importance
to the picture takings as proof that the win
was improperly executed.
VIII. The Court of Appeals erred in holding
that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing
and notary) presented by the petitioner had
been explained away, and that the trial
court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of
its appellate jurisdiction or has so far
departed from the accepted and usual
course of judicial proceedings, as to call for
an exercise of the power of supervision.
X. The Court of Appeals erred in reversing
the decision of the trial court and admitting
to probate Exhibit "F", the alleged last will
and testament of the deceased Isabel
Gabriel.
It will be noted from the above assignments
of errors that the same are substantially
factual in character and content. Hence, at
the very outset, We must again state the
oft-repeated and well-established rule that
in this jurisdiction, the factual findings of the
Court of Appeals are not reviewable, the
same being binding and conclusive on this
Court. This rule has been stated and
reiterated in a long line of cases enumerated
in Chan vs. CA (L-27488, June 30, 1970, 33
SCRA 737, 743) 12 and Tapas vs. CA (L-
22202, February 27; 1976, 69 SCRA
393), 13 and in the more recent cases
of Baptisia vs. Carillo and CA  (L32192, July
30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque  (L-
25777, November 26, 1976, 74 SCRA 83,
88). In the case of Chan vs. CA, this Court
said:
... from Guico v. Mayuga, a 1936 decision,
the opinion being penned by the then Justice
Recto, it has been well-settled that the
jurisdiction of tills Court in cases brought to
us from the Court of Appeals is limited to
reviewing and revising the errors of law
imputed to it, its findings of fact being
conclusive. More specifically, in a decision
exactly a month later, this Court, speaking
through the then Justice Laurel, it was held
that the same principle is applicable, even if
the Court of Appeals was in disagreement
with the lower court as to the weight of the
evidence with a consequent reversal of its
findings of fact ...
Stated otherwise, findings of facts by the
Court of Appeals, when supported by
substantive evidence are not reviewable on
appeal by certiorari. Said findings of the
appellate court are final and cannot be
disturbed by Us particularly because its
premises are borne out by the record or
based upon substantial evidence and what is
more, when such findings are correct.
Assignments of errors involving factual
issues cannot be ventilated in a review of
the decision of the Court of Appeals because
only legal questions may be raised. The
Supreme Court is not at liberty to alter or
modify the facts as set forth in the decision
of the Court of Appeals sought to be
reversed. Where the findings of the Court of
Appeals are contrary to those of the trial
court, a minute scrutiny by the Supreme
Court is in order, and resort to duly-proven
evidence becomes necessary. The general
rule We have thus stated above is not
without some recognized exceptions.
Having laid down the above legal precepts
as Our foundation, We now proceed to
consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends
that the respondent Court of Appeals erred
in holding that the document, Exhibit "F",
was executed and attested as required by
law when there was absolutely no proof that
the three instrumental witnesses were
credible witnesses. She argues that the
require. ment in Article 806, Civil Code, that
the witnesses must be credible is an
absolute requirement which must be
complied with before an alleged last will and
testament may be admitted to probate and
that to be a credible witness, there must be
evidence on record that the witness has a
good standing in his community, or that he
is honest and upright, or reputed to be
trustworthy and reliable. According to
petitioner, unless the qualifications of the
witness are first established, his testimony
may not be favorably considered. Petitioner
contends that the term "credible" is not
synonymous with "competent" for a witness
may be competent under Article 820 and
821 of the Civil Code and still not be credible
as required by Article 805 of the same Code.
It is further urged that the term "credible"
as used in the Civil Code should receive the
same settled and well- known meaning it
has under the Naturalization Law, the latter
being a kindred legislation with the Civil
Code provisions on wigs with respect to the
qualifications of witnesses.
We find no merit to petitioner's first
assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness
to the execution of wills while Article 821
sets forth the disqualification from being a
witness to a win. These Articles state:
Art. 820. Any person of sound mind and of
the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and
write, may be a witness to the execution of
a will mentioned in article 806 of this Code.
"Art. 821. The following are disqualified from
being witnesses to a will:
(1) Any person not domiciled in the
Philippines,
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory
requirement that the witness testify initially
or at any time during the trial as to his good
standing in the community, his reputation
for trustworthythiness and reliableness, his
honesty and uprightness in order that his
testimony may be believed and accepted by
the trial court. It is enough that the
qualifications enumerated in Article 820 of
the Civil Code are complied with, such that
the soundness of his mind can be shown by
or deduced from his answers to the
questions propounded to him, that his age
(18 years or more) is shown from his
appearance, testimony , or competently
proved otherwise, as well as the fact that he
is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of
the Court, and that he has none of the
disqualifications under Article 821 of the
Civil Code. We reject petitioner's contention
that it must first be established in the record
the good standing of the witness in the
community, his reputation for
trustworthiness and reliableness, his
honesty and uprightness, because such
attributes are presumed of the witness
unless the contrary is proved otherwise by
the opposing party.
We also reject as without merit petitioner's
contention that the term "credible" as used
in the Civil Code should be given the same
meaning it has under the Naturalization Law
where the law is mandatory that the petition
for naturalization must be supported by two
character witnesses who must prove their
good standing in the community, reputation
for trustworthiness and reliableness, their
honesty and uprightness. The two witnesses
in a petition for naturalization are character
witnesses in that being citizens of the
Philippines, they personally know the
petitioner to be a resident of the Philippines
for the period of time required by the Act
and a person of good repute and morally
irreproachable and that said petitioner has in
their opinion all the qualifications necessary
to become a citizen of the Philippines and is
not in any way disqualified under the
provisions of the Naturalization Law (Section
7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental
witnesses are not character witnesses for
they merely attest the execution of a will or
testament and affirm the formalities
attendant to said execution. And We agree
with the respondent that the rulings laid
down in the cases cited by petitioner
concerning character witnesses in
naturalization proceedings are not applicable
to instrumental witnesses to wills executed
under the Civil Code of the Philippines.
In the case at bar, the finding that each and
everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, are competent
and credible is satisfactorily supported by
the evidence as found by the respondent
Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon.
Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses,
much less has it been shown that anyone of
them is below 18 years of age, of unsound
mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New
Civil Code, every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by
three or more credible  witnesses in the
presence of the testator and of one another,
While the petitioner submits that Article 820
and 821 of the New Civil Code speak of
the competency of a witness  due to his
qualifications under the first Article and none
of the disqualifications under the second
Article, whereas Article 805 requires the
attestation of three or more credible
witnesses, petitioner concludes that the
term credible  requires something more than
just being competent and, therefore, a
witness in addition to
being competent  under Articles 820 and 821
must also be a credible witness under Article
805.
Petitioner cites American authorities that
competency and credibility of a witness are
not synonymous terms and one may be a
competent witness and yet not a credible
one. She exacerbates that there is no
evidence on record to show that the
instrumental witnesses are credible in
themselves, that is, that they are of good
standing in the community since one was a
family driver by profession and the second
the wife of the driver, a housekeeper. It is
true that Celso Gimpaya was the driver of
the testatrix and his wife Maria Gimpaya,
merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild
of the testatrix But the relation of employer
and employee much less the humble or
financial position of a person do not
disqualify him to be a competent
testamentary witness. (Molo Pekson and
Perez Nable vs. Tanchuco, et al., 100 Phil.
344; Testate Estate of Raymundo, Off. Gaz.,
March 18,1941, p. 788).
Private respondent maintains that the
qualifications of the three or more credible
witnesses mentioned in Article 805 of the
Civil Code are those mentioned in Article
820 of the same Code, this being obvious
from that portion of Article 820 which says
"may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and
cites authorities that the word "credible"
insofar as witnesses to a will are concerned
simply means " competent." Thus, in the
case of Suntay vs. Suntay, 95 Phil. 500, the
Supreme Court held that "Granting that a
will was duly executed and that it was in
existence at the time of, and not revoked
before, the death of the testator, still the
provisions of the lost wig must be clearly
and distinctly proved by at least two credible
witnesses. 'Credible witnesses' mean
competent witnesses and not those who
testify to facts from or upon hearsay.
"  emphasis  supplied).
In Molo Pekson and Perez Nable vs.
Tanchuco, et al., 100 Phil. 344, the Supreme
Court held that "Section 620 of the same
Code of Civil Procedure provides that any
person of sound mind, and of the age of
eighteen years or more, and not blind, deaf,
or dumb and able to read and write, may be
a witness to the execution of a will. This
same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The
relation of employer and employee, or being
a relative to the beneficiary in a win, does
not disqualify one to be a witness to a will.
The main qualification of a witness in the
attestation of wills, if other qualifications as
to age, mental capacity and literacy are
present, is that said witness must be
credible, that is to say, his testimony may
be entitled to credence. There is a long line
of authorities on this point, a few of which
we may cite:
A 'credible witness is one who is not is not to
testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs.
Kelker 74 A. 619, 226 Pix 16, 134 Am. St.
Rep. 1010. (Words and Phrases, Vol. 10, p.
340).
As construed by the common law, a 'credible
witness' to a will means a 'competent
witness.' Appeal of Clark, 95 A. 517, 114
Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).
Expression 'credible witness' in relation to
attestation of wins means 'competent
witness that is, one competent under the
law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs.
First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of
wills requiring that a will shall be attested by
two credible witnesses means competent;
witnesses who, at the time of attesting the
will, are legally competent to testify, in a
court of justice, to the facts attested by
subscribing the will, the competency being
determined as of the date of the execution
of the will and not of the timr it is offered for
probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute
relating to wills, means competent witnesses
— that is, such persons as are not legally
disqualified from testifying in courts of
justice, by reason of mental incapacity,
interest, or the commission of crimes, or
other cause excluding them from testifying
generally, or rendering them incompetent in
respect of the particular subject matter or in
the particular suit. Hill vs. Chicago Title &
Trust co 152 N.E. 545, 546, 322 111. 42.
(Ibid. p, 343)
In the strict sense, the competency of a
person to be an instrumental witness to a
will is determined by the statute, that is Art.
820 and 821, Civil Code, whereas his
credibility depends On the appreciation of
his testimony and arises from the belief and
conclusion of the Court that said witness is
telling the truth. Thus, in the case of Vda.
de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968,
the Supreme Court held and ruled that:
"Competency as a witness is one thing, and
it is another to be a credible witness, so
credible that the Court must accept what he
says. Trial courts may allow a person to
testify as a witness upon a given matter
because he is competent, but may
thereafter decide whether to believe or not
to believe his testimony." In fine, We state
the rule that the instrumental witnesses in
Order to be competent must be shown to
have the qualifications under Article 820 of
the Civil Code and none of the
disqualifications under Article 821 and for
their testimony to be credible, that is worthy
of belief and entitled to credence, it is not
mandatory that evidence be first established
on record that the witnesses have a good
standing in the community or that they are
honest and upright or reputed to be
trustworthy and reliable, for a person is
presumed to be such unless the contrary is
established otherwise. In other words, the
instrumental witnesses must be competent
and their testimonies must be credible
before the court allows the probate of the
will they have attested. We, therefore, reject
petitioner's position that it was fatal for
respondent not to have introduced prior and
independent proof of the fact that the
witnesses were "credible witnesses that is,
that they have a good standing in the
community and reputed to be trustworthy
and reliable.
Under the second, third, fourth, fifth, sixth,
seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the
respondent court in finding that the
preparation and execution of the will was
expected and not coincidental, in finding
that Atty. Paraiso was not previously
furnished with the names and residence
certificates of the witnesses as to enable him
to type such data into the document Exhibit
"F", in holding that the fact that the three
typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three
attesting witnesses were all present in the
same occasion, in holding credible that
Isabel Gabriel could have dictated the will
without note or document to Atty. Paraiso,
in holding that Matilde Orobia was physically
present when the will was signed on April
15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial
court gave undue importance to the picture
takings as proof that the will was improperly
executed, and in holding that the grave
contradictions, evasions and
misrepresentations of the witnesses
(subscribing and notary) presented by the
petitioner had been explained away.
Since the above errors are factual We must
repeat what We have previously laid down
that the findings of fact of the appellate
court are binding and controlling which We
cannot review, subject to certain exceptions
which We win consider and discuss
hereinafter. We are convinced that the
appellate court's findings are sufficiently
justified and supported by the evidence on
record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the
office of Atty. Paraiso and bringing all the
witnesses without previous appointment for
the preparation and execution of the win
and that it was coincidental that Atty.
Paraiso was available at the moment
impugns the finding of the Court of Appeals
that although Atty. Paraiso admitted the
visit of Isabel Gabriel and of her companions
to his office on April 15, 1961 was
unexpected as there was no prior
appointment with him, but he explained that
he was available for any business
transaction on that day and that Isabel
Gabriel had earlier requested him to help
her prepare her will. The finding of the
appellate court is amply based on the
testimony of Celso Gimpaya that he was not
only informed on the morning of the day
that he witnessed the will but that it was the
third time when Isabel Gabriel told him that
he was going to witness the making of her
will, as well as the testimony of Maria
Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel Gabriel's
house which was nearby and from said
house, they left in a car to the lawyer's
office, which testimonies are recited in the
respondent Court's decision.
The respondent Court further found the
following facts: that Celso Gimpaya and his
wife Maria Gimpaya obtained residence
certificates a few days before Exhibit "F" was
executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's residence certificate No. A-
5114974 was issued also at Navotas, Rizal
on April 14, 1961. The respondent Court
correctly observed that there was nothing
surprising in these facts and that the
securing of these residence certificates two
days and one day, respectively, before the
execution of the will on April 15, 1961, far
from showing an amazing coincidence,
reveals that the spouses were earlier
notified that they would be witnesses to the
execution of Isabel Gabriel's will.
We also agree with the respondent Court's
conclusion that the excursion to the office of
Atty. Paraiso was planned by the deceased,
which conclusion was correctly drawn from
the testimony of the Gimpaya spouses that
they started from the Navotas residence of
the deceased with a photographer and
Isabel Gabriel herself, then they proceeded
by car to Matilde Orobia's house in
Philamlife, Quezon City to fetch her and
from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place
where Isabel Gabriel stayed for about ten to
fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano
Paraiso's office.
It is also evident from the records, as
testified to by Atty. Paraiso, that previous to
the day that. the will was executed on April
15, 1961, Isabel Gabriel had requested him
to help her in the execution of her will and
that he told her that if she really wanted to
execute her will, she should bring with her
at least the Mayor of Navotas, Rizal and a
Councilor to be her witnesses and that he
(Atty. Paraiso) wanted a medical certificate
from a physician notwithstanding the fact
that he believed her to be of sound and
disposition mind. From this evidence, the
appellate court rightly concluded, thus: "It
is, therefore, clear that the presence of
Isabel Gabriel and her witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office
of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel
Gabriel herself."
As to the appellate court's finding that Atty.
Paraiso was not previously furnished with
the names and residence certificates of the
witnesses as to enable him to type such
data into the document Exhibit ' L which the
petitioner assails as contradictory and
irreconcilable with the statement of the
Court that Atty. Paraiso was handed a list
(containing the names of the witnesses and
their respective residence certificates)
immediately upon their arrival in the law
office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who
testified that it was only on said occasion
that he received such list from Isabel
Gabriel, We cannot agree with petitioner's
contention. We find no contradiction for the,
respondent Court held that on the occasion
of the will making on April 15, 1961, the list
was given immediately to Atty. Paraiso and
that no such list was given the lawyer in any
previous occasion or date prior to April 15,
1961.
But whether Atty. Paraiso was previously
furnished with the names and residence
certificates of the witnesses on a prior
occasion or on the very occasion and date in
April 15, 1961 when the will was executed,
is of no moment for such data appear in the
notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by
the witnesses on April 15, 1961 following
the attestation clause duly executed and
signed on the same occasion, April 15,
1961. And since Exhibit "F" is a notarial will
duly acknowledged by the testatrix and the
witnesses before a notary public, the same
is a public document executed and attested
through the intervention of the notary public
and as such public document is evidence of
the facts in clear, unequivocal manner
therein expressed. It has in its favor the
presumption of regularity. To contradict all
these, there must be evidence that is clear,
convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA
407). We find no such evidence pointed by
petitioner in the case at bar.
Likewise, the conclusion of the Court of
Appeals in holding that the fact that the
three typewritten lines under the typewritten
words "pangalan ' and "tinitirahan" were left
blank shows beyond cavil that the three
attesting witnesses were all present in the
same occasion merits Our approval because
tills conclusion is supported and borne out
by the evidence found by the appellate
court, thus: "On page 5 of Exhibit "F",
beneath the typewritten words "names",
"Res. Tax Cert. date issued" and place
issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas
Rizal appears to be in typewritten form while
the names, residence tax certificate
numbers, dates and places of issuance of
said certificates pertaining to the three (3)
witnesses were personally handwritten by
Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to
close relatives; and the seventh was the
appointment of the appellant Santiago as
executrix of the will without bond. The
technical description of the properties in
paragraph 5 of Exhibit F was not given and
the numbers of the certificates of title were
only supplied by Atty. Paraiso. "
It is true that in one disposition, the
numbers of the Torrens titles of the
properties disposed and the docket number
of a special proceeding are indicated which
Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner
contends that it was incredible that Isabel
Gabriel could have dictated the will Exhibit
"F" without any note or document to Atty.
Paraiso, considering that Isabel Gabriel was
an old and sickly woman more than eighty-
one years old and had been suffering from a
brain injury caused by two severe blows at
her head and died of terminal cancer a few
weeks after the execution of Exhibit "F".
While we can rule that this is a finding of
fact which is within the competency of the
respondent appellate court in determining
the testamentary capacity of the testatrix
and is, therefore, beyond Our power to
revise and review, We nevertheless hold
that the conclusion reached by the Court of
Appeals that the testatrix dictated her will
without any note or memorandum appears
to be fully supported by the following facts
or evidence appearing on record. Thus,
Isabel Gabriel, despite her age, was
particularly active in her business affairs as
she actively managed the affairs of the
movie business ISABELITA Theater, paying
the aparatistas herself until June 4, 1961, 3
days before her death. She was the widow
of the late Eligio Naval, former Governor of
Rizal Province and acted as coadministratrix
in the Intestate Estate of her deceased
husband Eligio Naval. The text of the win
was in Tagalog, a dialect known and
understood by her and in the light of all the
circumstances, We agree with the
respondent Court that the testatrix dictated
her will without any note or memorandum, a
fact unanimously testified to by the three
attesting witnesses and the notary public
himself.
Petitioner's sixth assignment of error is also
bereft of merit. The evidence, both
testimonial and documentary is, according
to the respondent court, overwhelming that
Matilde Orobia was physically present when
the will was signed on April 15, 1961 by the
testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual
finding of the appellate court is very clear,
thus: "On the contrary, the record is replete
with proof that Matilde Orobia was physically
present when the will was signed by Isabel
Gabriel on April '15, 1961 along with her co-
witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that
Orobia's admission that she gave piano
lessons to the child of the appellant on
Wednesdays and Saturdays and that April
15, 1961 happened to be a Saturday for
which reason Orobia could not have been
present to witness the will on that — day is
purely conjectural. Witness Orobia did not
admit having given piano lessons to the
appellant's child every Wednesday and
Saturday without fail. It is highly probable
that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for
which reason she could have witnessed the
execution of the will. Orobia spoke of
occasions when she missed giving piano
lessons and had to make up for the same.
Anyway, her presence at the law office of
Atty. Paraiso was in the morning of April 15,
1961 and there was nothing to preclude her
from giving piano lessons on the afternoon
of the same day in Navotas, Rizal."
In addition to the testimony of Matilde
Orobia, Celso Gimpaya and Maria Gimpaya
that Matilde was present on April 15, 1961
and that she signed the attestation clause to
the will and on the left-hand margin of each
of the pages of the will, the documentary
evidence which is the will itself, the
attestation clause and the notarial
acknowledgment overwhelmingly and
convincingly prove such fact that Matilde
Orobia was present on that day of April 15,
1961 and that she witnessed the will by
signing her name thereon and acknowledged
the same before the notary public, Atty.
Cipriano P. Paraiso. The attestation clause
which Matilde Orobia signed is the best
evidence as to the date of signing because it
preserves in permanent form a recital of all
the material facts attending the execution of
the will. This is the very purpose of the
attestation clause which is made for the
purpose of preserving in permanent form a
record of the facts attending the execution
of the will, so that in case of failure in the
memory of the subscribing witnesses, or
other casualty they may still be proved.
(Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by
petitioner faulting the Court of Appeals in
holding that the trial court gave undue
importance to the picture-takings as proof
that the win was improperly executed, We
agree with the reasoning of the respondent
court that: "Matilde Orobia's Identification of
the photographer as "Cesar Mendoza",
contrary to what the other two witnesses
(Celso and Maria Gimpaya) and Atty. Paraiso
said that the photographer was Benjamin
Cifra, Jr., is at worst a minor mistake
attributable to lapse of time. The law does
not require a photographer for the execution
and attestation of the will. The fact that Miss
Orobia mistakenly Identified the
photographer as Cesar Mendoza scarcely
detracts from her testimony that she was
present when the will was signed because
what matters here is not the photographer
but the photograph taken which clearly
portrays Matilde Orobia herself, her co-
witnesses Celso Gimpaya. " Further, the
respondent Court correctly held: "The trial
court gave undue importance to the picture
takings, jumping therefrom to the conclusion
that the will was improperly executed. The
evidence however, heavily points to only one
occasion of the execution of the will on April
15, 1961 which was witnessed by Matilde
Orobia, Celso Gimpaya and Maria Gimpaya.
These witnesses were quite emphatic and
positive when they spoke of this occasion.
Hence, their Identification of some
photographs wherein they all appeared
along with Isabel Gabriel and Atty. Paraiso
was superfluous."
Continuing, the respondent Court declared:
"It is true that the second picture-taking was
disclosed at the cross examination of Celso
Gimpaya. But this was explained by Atty.
Paraiso as a reenactment of the first incident
upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was
admittedly no longer present was wholly
unnecessary if not pointless. What was
important was that the will was duly
executed and witnessed on the first occasion
on April 15, 1961 , " and We agree with the
Court's rationalization in conformity with
logic, law and jurisprudence which do not
require picture-taking as one of the legal
requisites for the execution or probate of a
will.
Petitioner points to alleged grave
contradictions, evasions and
misrepresentations of witnesses in their
respective testimonies before the trial court.
On the other hand, the respondent Court of
Appeals held that said contradictions,
evasions and misrepresentations had been
explained away. Such discrepancies as in
the description of the typewriter used by
Atty. Paraiso which he described as "elite"
which to him meant big letters which are of
the type in which the will was typewritten
but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in
mentioning the name of the photographer
by Matilde Orobia to be Cesar Mendoza
when actually it was Benjamin Cifra, Jr.—
these are indeed unimportant details which
could have been affected by the lapse of
time and the treachery of human memory
such that by themselves would not alter the
probative value of their testimonies on the
true execution of the will, (Pascual vs. dela
Cruz, 28 SCRA 421, 424) for it cannot be
expected that the testimony of every person
win be Identical and coinciding with each
other with regard to details of an incident
and that witnesses are not expected to
remember all details. Human experience
teach us "that contradictions of witnesses
generally occur in the details of certain
incidents, after a long series of questionings,
and far from being an evidence of falsehood
constitute a demonstration of good faith. In
as much as not all those who witness an
incident are impressed in like manner, it is
but natural that in relating their impressions,
they should not agree in the minor details;
hence the contradictions in their testimony."
(Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the
findings of the trial court should not have
been disturbed by the respondent appellate
court because the trial court was in a better
position to weigh and evaluate the evidence
presented in the course of the trial. As a
general rule, petitioner is correct but it is
subject to well-established exceptions. The
right of the Court of Appeals to review, alter
and reverse the findings of the trial court
where the appellate court, in reviewing the
evidence has found that facts and
circumstances of weight and influence have
been ignored and overlooked and the
significance of which have been
misinterpreted by the trial court, cannot be
disputed. Findings of facts made by trial
courts particularly when they are based on
conflicting evidence whose evaluation hinges
on questions of credibility of contending
witnesses hes peculiarly within the province
of trial courts and generally, the appellate
court should not interfere with the same. In
the instant case, however, the Court of
Appeals found that the trial court had
overlooked and misinterpreted the facts and
circumstances established in the record.
Whereas the appellate court said that
"Nothing in the record supports the trial
court's unbelief that Isabel Gabriel dictated
her will without any note or document to
Atty. Paraiso;" that the trial court's
conclusion that Matilde Orobia could not
have witnessed anybody signing the alleged
will or that she could not have witnessed
Celso Gimpaya and Maria Gimpaya sign the
same or that she witnessed only the
deceased signing it, is a conclusion based
not on facts but on inferences; that the trial
court gave undue importance to the picture-
takings, jumping therefrom to the conclusion
that the will was improperly executed and
that there is nothing in the entire record to
support the conclusion of the court a quo
that the will signing occasion was a mere
coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to
witness the signing of her will, then it
becomes the duty of the appellate court to
reverse findings of fact of the trial court in
the exercise of its appellate jurisdiction over
the lower courts.
Still the petitioner insists that the case at
bar is an exception to the rule that the
judgment of the Court of Appeals is
conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We
agree with the petitioner that among the
exceptions are: (1) when the conclusion is a
finding grounded entirely on speculations,
surmises or conjectures; (2) when the
inference is manifestly mistaken, absurd or
impossible; (3) when there is a grave abuse
of discretion; (4) when the presence of each
other as required by law. " Specifically, We
affirm that on April 15, 1961 the testatrix
Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to
the office of Atty. Cipriano Paraiso at the
Bank of P.I. Building, Manila in the morning
of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso
upon arriving at the latter's office and told
the lawyer that she wanted her will to be
made; that Atty. Paraiso asked Isabel
Gabriel to dictate what she wanted to be
written in the will and the attorney wrote
down the dictation of Isabel Gabriel in
Tagalog, a language known to and spoken
by her; that Atty. Paraiso read back to her
what he wrote as dictated and she affirmed
their correctness; the lawyer then typed the
will and after finishing the document, he
read it to her and she told him that it was
alright; that thereafter, Isabel Gabriel signed
her name at the end of the will in the
presence of the three witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya
and also at the left-hand margin of each and
every page of the document in the presence
also of the said three witnesses; that
thereafter Matilde Orobia attested the will by
signing her name at the end of the
attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the
document in the presence of Isabel Gabriel
and the other two witnesses, Celso Gimpaya
and Maria Gimpaya; then, Celso Gimpaya
signed also the will at the bottom of the
attestation clause and at the left-hand
margin of the other pages of the document
in the presence of Isabel Gabriel, Matilde
Orobia and Maria Gimpaya; that Maria
Gimpaya followed suit, signing her name at
the foot of the attestation clause and at the
left-hand margin of every page in the
presence of Isabel Gabriel, Matilde Orobia
and Celso Gimpaya; that thereafter, Atty.
Paraiso notarized the will as Page No. 94,
Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution
and attestation of the will, a photographer
took pictures, one Exhibit "G", depicting
Matilde Orobia, the testatrix Isabel Gabriel,
Celso Gimpaya, Maria Gimpaya and Atty.
Paraiso, taken on said occasion of the
signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing testimony
that he had earlier advised Isabel Gabriel to
bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand
the Identities of the three attesting
witnesses until the latter showed up at his
law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not
controverted that he wrote down in his own
hand the date appearing on page 5 of
Exhibit "F" dissipates any lingering doubt
that he prepared and ratified the will on the
date in question."
It is also a factual finding of the Court of
Appeals in holding that it was credible that
Isabel Gabriel could have dictated the will,
Exhibit "F", without any note or document to
Atty. Paraiso as against the contention of
petitioner that it was incredible. This ruling
of the respondent court is fully supported by
the evidence on record as stated in the
decision under review, thus: "Nothing in the
record supports the trial court's unbelief that
Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso. On the
contrary, all the three attesting witnesses
uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that
other than the piece of paper that she
handed to said lawyer she had no note or
document. This fact jibes with the evidence
— which the trial court itself believed was
unshaken — that Isabel Gabriel was of
sound disposing memory when she executed
her will.
Exhibit "F" reveals only seven (7)
dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's
wish to be interred according to Catholic
rites the second was a general directive to
pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel
Vda. de Santiago and P2,000.00 for her
brother Santiago Gabriel; the fourth was a
listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel
and the amount for each legatee the fifth
was the institution of the petitioner-
appellant, Lutgarda Santiago as the principal
heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the
remainder of her estate which she willed in
favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to
anyone except in extreme situations in
which judgment is based on a the last will and testament of the deceased
misapprehension of facts; (5) when the
findings of fact are conflicting, (6) when the
Court of Appeals, in making its findings,
went beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et
al., G.R. No. L-22459, Oct. 31, 1967; Ramos
vs. Pepsi Cola Bottling Co., G.R. No. L-
22533, Feb. 9, 1967; Hilarion Jr. vs. City of
Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We
hold that the case at bar does not fall within
any of the exceptions enumerated above.
We likewise hold that the findings of fact of
the respondent appellate court are fully
supported by the evidence on record. The
conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and
We discern no misapprehension of facts. The
respondent Court's findings of fact are not
conflicting. Hence, the well-established rule
that the decision of the Court of Appeals and
its findings of fact are binding and
conclusive and should not be disturbed by
this Tribunal and it must be applied in the
case at bar in its full force and effect,
without qualification or reservation. The
above holding simply synthesize the
resolutions we have heretofore made in
respect ' to petitioner's previous
assignments of error and to which We have
disagreed and, therefore, rejected.
The last assignments of error of petitioner
must necessarily be rejected by Us as We
find the respondent Court acted properly
and correctly and has not departed from the
accepted and usual course of judicial
proceedings as to call for the exercise of the
power of supervision by the Supreme Court,
and as We find that the Court of Appeals did
not err in reversing the decision of the trial
court and admitting to probate Exhibit "F",
Isabel Gabriel.
We rule that the respondent Court's factual
findings upon its summation and evaluation
of the evidence on record is unassailable
that: "From the welter of evidence
presented, we are convinced that the will in
question was executed on April 15, 1961 in
the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and
witnessing the same in the the will on a
table with Isabel Gabriel, Celso Gimpaya and
Maria Gimpaya sitting around the table.
Atty. Paraiso, after finishing the notarial act,
then delivered the original to Isabel Gabriel
and retained the other copies for his file and
notarial register. A few days following the
signing of the will, Isabel Gabriel, Celso
Gimpaya and another photographer arrived
at the office of Atty. Paraiso and told the
lawyer that she wanted another picture
taken because the first picture did not turn
out good. The lawyer told her that this
cannot be done because the will was already
signed but Isabel Gabriel insisted that a
picture be taken, so a simulated signing was
performed during which incident Matilde
Orobia was not present.
Petitioner's exacerbation centers on the
supposed incredibility of the testimonies of
the witnesses for the proponent of the will,
their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the
three instrumental witnesses who constitute
the best evidence of the will making have
testified in favor of the probate of the will.
So has the lawyer who prepared it, one
learned in the law and long in the practice
thereof, who thereafter notarized it. All of
them are disinterested witnesses who stand
to receive no benefit from the testament.
The signatures of the witnesses and the
testatrix have been identified on the will and
there is no claim whatsoever and by anyone,
much less the petitioner, that they were not
genuine. In the last and final analysis, the
herein conflict is factual and we go back to
the rule that the Supreme Court cannot
review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING,
the judgment appealed from is hereby
AFFIRMED, with costs against the petitioner.
SO ORDERED.
.R. No. L-21755        December 29, 1924
In the matter of the testate estate of
Antonio Mojal, deceased. FILOMENA
NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA
AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.
ROMUALDEZ, J.:
This is a proceeding for the probate of the
will of the deceased Antonio Mojal instituted
by his surviving spouse, Filomena Nayve.
The probate is opposed by Leona Mojal and
Luciana Aguilar, sister and niece,
respectively, of the deceased.
The Court of First Instance of Albay, which
tried the case, overruled the objections to
the will, and ordered the probate thereof,
holding that the document in controversy
was the last will and testament of Antonio
Mojal, executed in accordance with law.
From this judgment the opponents appeal,
assigning error to the decree of the court
allowing the will to probate and overruling
their opposition.
The will in question, Exhibit A, is composed
of four sheets with written matter on only
side of each, that is, four pages written on
four sheets. The four sides or pages
containing written matter are paged "Pag.
1," "Pag. 2," "Pag. 3," "Pag. 4,"
successively. Each of the first two sides or
pages, which was issued, was signed by the
testator and the three witnesses on the
margin, left side of the reader. On the third
page actually used, the signatures of the
three witnesses appear also on the margin,
left side of the reader, but the signature of
the testator is not on the margin, but about
the middle of the page, at the end of the will
and before the attestation clause. On the
fourth page, the signatures of the witnesses
do not appear on the margin, but at the
bottom of the attestation clause, it being the
signature of the testator that is on the
margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by
the testator and the witnesses on each and
every sheet on the left margin; (b) the fact
of the sheets of the document not being
paged with letters; (c) the fact that the
attestation clause does not state the number
of sheets or pages actually used of the will;
and (d) the fact that the testator does not
appear to have signed all the sheets in the
presence of the three witnesses, and the
latter to have attested and signed all the
sheets in the presence of the testator and of
each other.
As to the signatures on the margin, it is
true, as above stated, that the third page
actually used was signed by the testator, not
on the left margin, as it was by the
witnesses, but about the middle of the page
and the end of the will; and that the fourth
page was signed by the witnesses, not on
the left margin, as it was by the testator,
but about the middle of the page and at the
end of the attestation clause.
In this respect the holding of this court in
the case of Avera vs. Garcia and
Rodriguez  (42 Phil., 145), is applicable,
wherein the will in question was signed by
the testator and the witnesses, not on the
left, but right, margin. The rule laid down in
that case is that the document contained the
necessary signatures on each page, whereby
each page of the will was authenticated and
safeguarded against any possible alteration.
In that case, the validity of the will was
sustained, and consequently it was allowed
to probate.
Applying that doctrine to the instant case,
we hold that, as each and every page used
of the will bears the signatures of the
testator and the witnesses, the fact that said
signatures do not all appear on the left
margin of each page does not detract from
the validity of the will.lawphi1.net
Turning to the second defect alleged, that is
to say, the fact that the sheets of the
document are not paged with letters, suffice
it to cite the case of Unson vs. Abella (43
Phil., 494), where this court held that paging
with Arabic numerals and not with letters, as
in the case before us, is within the spirit of
the law and is just as valid as paging with
letters.
As to the proposition that the attestation
clause does not state the number of sheets
or pages of the will, which is the third defect
assigned, it must be noted that the last
paragraph of the will here in question and
the attestation clause, coming next to it, are
of the following tenor:
In witness whereof, I set my
hand unto this will here in the
town of Camalig, Albay,
Philippine Islands, this 26th day
of November, nineteen hundred
and eighteen, composed of four
sheets, including the next:
ANTONIO
MOJAL
(Signed and declared by the
testator Don Antonio Mojal to be
his last will and testament in the
presence of each of us, and at
the request of said testator Don
Antonio Mojal, we signed this will
in the presence of each other
and of the testator.)
PEDRO
CARO
 SILVERIO document. And this fact is expressly stated
MORCO in the attestation clause now before us. But
ZOILO the fact of the testator and the witnesses
MASINAS having signed all the sheets of the will may
As may be seen, the number of sheets is be proven by the mere examination of the
stated in said last paragraph of the will. It is document, although it does not say anything
true that in the case of Uy Coque vs. Navas about this, and if that is the fact, as it is in
L. Sioca (43 Phil., 405), it was held that the the instant case, the danger of fraud in this
attestation clause must state the number of respect, which is what the law tries to avoid,
sheets or pages composing the will; but does not exist.
when, as in the case before us, such fact, Therefore, as in the instant case the fact
while it is not stated in the attestation that the testator and the witnesses signed
clause, appears at the end of the will proper, each and every page of the will is proven by
so that no proof aliunde is necessary of the the mere examination of the signatures in
number of the sheets of the will, then there the will, the omission to expressly state such
can be no doubt that it complies with the evident fact does not invalidate the will nor
intention of the law that the number of prevent its probate.
sheets of which the will is composed be The order appealed from is affirmed with the
shown by the document itself, to prevent costs against the appellants. So ordered.
the number of the sheets of the will from Johnson, Malcolm, and Villamor, JJ., concur.
being unduly increased or decreased.
With regard to the last defect pointed out,
namely, that the testator does not appear to
have signed on all the sheets of the will in
the presence of the three witnesses, and the
latter to have attested and signed on all the
sheets in the presence of the testator and of
each other, it must be noted that in the
attestation clause above set out it is said
that the testator signed the will "in the
presence of each of the witnesses" and the
latter signed "in the presence of each other
and of the testator." So that, as to whether
the testator and the attesting witnesses saw
each other sign the will, such a requirement
was clearly and sufficiently complied with.
What is not stated in this clause is whether
the testator and the witnesses signed all the
sheets of the will.
The act of the testator and the witnesses
seeing reciprocally the signing of the will is
one which cannot be proven by the mere
exhibition of the will unless it is stated in the
G.R. No. L-15025 March 15, 1920
In the matter of the estate of REMIGIA
SAGUINSIN, deceased.
ARCADIO DEL ROSARIO, applicant-
appellant,
JOSE A. DEL PRADO, ET. AL., legatees-
appellants,
vs.
RUFINA SAGUINSIN, opponent-appellee.
Fernando Manikis and Gibbs, McDonough &
Johnson for applicant and appellant.
No appearance for legatees and appellants.
Claro M. Recto for appellee.
ARELLANO, C.J.: chanrobles virtual law
library
There was presented in the Court of First
Instance of the city of Manila for allowance an
instrument which the petitioner calls the will of
Remigia Saguinsin. It is a manuscript signed
by the alleged testatrix and three witnesses on
October 3, 1918, the conclusion of which says:
"I, the testatrix, sign in the presence of the
witnesses this will written by D. Lino Mendoza
at my request and under my direction." (Yo, la
testadora, firmo en presencia de los testigos
este testamento que ha escrito D. Lino
Mendoza a mi ruego y bajo mi direccion.)--
Then follows a signature and then these
expressions: "The testatrix signed in our
presence and each of us signed in the presence
of the others." (La testadora ha firmado en
nuestra presencia y cada uno de nosotros en
presencia de los demas.) - "Witness who wrote
this will at the request and under the free and
voluntary personal direction of the testatrix
herself." (Testigo que escribio este testamento
a ruego y bajo la libre y voluntaria direccion
personal de la misma testadora.) (Sgd.) Lino
Mendoza - "Attesting witnesses." (Testigos del
testamento.) Then come three
signatures.chanroblesvirtualawlibrary chanrobl
es virtual law library
These three signature together with that of the
alleged testatrix are written also on the left
margin of the firs page or folio and on the third
page or second folio, but not on the second
page or reverse side of the first page where, as
is seen, the manuscript is continued, the
second folio not containing anything but the
date and the and of the
manuscript.chanroblesvirtualawlibrary chanrobl
es virtual law library
Under these, conditions the instrument was
impugned by a sister of the alleged testatrix
and after the taking of the declaration of the
authors of the signatures which appear three
times and in different parts of the manuscript,
the court declared that the document attached
to the record could not be allowed as a
will.chanroblesvirtualawlibrary chanrobles
virtual law library
Certain person who allege themselves to be
legatees appealed jointly with the lawyer for
the
petitioner.chanroblesvirtualawlibrary chanroble
s virtual law library
And upon considering the case on appeal, this
court decides:chanrobles virtual law library
That, in conformity with Act No. 2645,
amendatory to section 618 of the Code of Civil
Procedure, the concluding part of the will does
not express what that law, under pain of
nullity, requires. Section 618, as amended,
says: "The attestation shall state the number
of sheets or pages used upon which the will is
written . . . ." None of these requirements
appear in the attesting clause at the end of the
document presented. The second
page, i.e., what is written on the reverse side
of the first, engenders the doubt whether what
is written thereon was ordered written by the
alleged testatrix or was subsequently added by
the same hand that drew the first page and the
date that appears on the third. With this non-
fulfillment alone of Act No. 2645 it is
impossible to allow the so-called will which
violates said
law.chanroblesvirtualawlibrary chanrobles
virtual law library
That besides this violation there is another as
evident as the preceding. Said Act No. 2645
provides: "The testator or the person
requested by him to write his name and the
instrumental witnesses of the will shall also
sign, as aforesaid, each and every page
thereof, on the left margin, and said pages
shall be numbered correlatively in letters
placed on the upper part of each sheet." The
English text differs from the Spanish text: the
former say only pages (paginas) while the
latter puts (hojas). "Hoja," according to
the Diccionario de la Academia, "is with respect
to books or notebooks folio." According to the
same dictionary "pagina  (page) is each of one
of the two faces or planes of the leaf of a book
or notebook; that which is written or printed
on each page, for example I have read only
two pages of this book." Two pages constitute
one leaf. One page represents only one-half of
one leaf. The English text requires that the
signature which guarantees the genuineness of
the testament shall be placed on the left hand
margin of each page and that each page
should be numbered by letter in the upper part
This requirement is entirely lacking on the
second page that is, on the reverse side of the
first. According to the old method of paging
"folio 1.� y su vto." that is, first folio and the
reverse side, should have been stated, and the
second page would then have been included in
the citation. By the failure to comply with this
requisite the law has been obviously violated.
In the English text the word "pages" does not
leave any room for doubt and it is invariably
used in the text of the law, whereas in the
Spanish text, "hoja" and "pagina" are used
indifferently as may be seen in the following
part which says: "el atestiguamiento hara
constar el numero de hojas o paginas utiles en
que esta extendido el testamento." This failure
to comply with the law also vitiates the will and
invalidates it, as the second page is lacking in
authenticity.chanroblesvirtualawlibrary chanrob
les virtual law library
This is a defect so radical that there is no way
by which what is written on the reverse side of
the first folio may be held valid. It is possible
that this document consists of only the two
folios numbered 1 and 2, and that on the
reverse side of number 2 nothing may have
been written upon the order of the testatrix,
the testament ending at the foot of the first
folio with the legacy "To my nephew Catalino
Ignacio, pesos 200" (A mi sobrino Catalino
Ignacio doscientos pesos) and from that part
then immediately follows folio No. 2 - "Manila a
tres de Octubre de mil novecientos diez y
ocho.--Yo la testadora firmo en presencia etc."
(Manila, October 3, 1918, - I, the testatrix,
sign in the presence of etc.) There is nothing
which guarantees all the contents of page 2.
The margin of this page is absolutely blank.
there is nothing which gives the assurance that
the testatrix ordered the insertion of all the
contents of page 2. It may very well be that it
was subsequently added thereby substituting
the will of the testatrix, a result for the
prevention of which this manner of authenticity
by affixing the signature on each page and not
merely on each folio was provided for by law.
This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon
two folios or leaves; three pages having been
written, the authenticity of all three of them
should be guaranteed with the signature of the
alleged testatrix and her witnesses. The
English text which requires the signing of
pages and not merely leaves or folios should
prevail. it is so provided in section 15 of the
Administrative Code (Act No.
2711).chanroblesvirtualawlibrary chanrobles
virtual law library
The judgment appealed from is affirmed, with
costs of this instance against the appellant.
Torres, Street, Araullo, Malcolm and
Avanceña,  JJ., concur.
G.R. No. L-21151             February 25,
1924
In re will of Antonio Vergel de Dios,
deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA
JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET
AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus &
Delgado and Gibbs & McDonough for
appellants.
Eusebio Orense & Antonio M. Opisso for
appellees.
ROMUALDEZ, J.:
The question in this case is as to the validity of
the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for
probate, and contested by Fernando Vergel de
Dios and Francisco, Ricardo and Virgilio Rustia,
the court of First Instance of Manila having
denied its probate.
The applicant takes this appeal, assigning error
to the action of the lower court in holding the
attestation fatally defective and in not finding
Act No. 2645 void.
The defects attributed to the will by the
contestants are as follows, to wit:
(a) It was not sufficiently proven that the
testator knew the contents of the will.
(b) The testator did not sign all the pages of
the will.
(c) He did not request anybody to attest the
document as his last will.
(d) He did not sign it in the presence of any
witness.
(e) The witnesses did not sign it in the
presence of the testator, or of each other, nor
with knowledge on the part of the testator that
they were signing his will.
(f ) The witnesses did not sign the attestation
clause before the death of the testator.
(g) This clause was written after the execution
of the dispositive part of the will and was
attached to the will after the death of the
testator.
(h) The signatures of the testator on page 3 of
Exhibit A are not authentic.
The evidence sufficiently shows that when
Attorney Lopez Lizo read the will to the
testator, the latter's mind was perfectly sane
and he understood it: that he signed all the
pages of the will proper, although he did not
sign the page containing the attestation
clause; that while he did not personally call the
witnesses, yet the latter were invited by
Attorney Lopez Lizo to act as such in his
presence. The law does not require that the
testator precisely be the person to request the
witnesses to attest his will. It was also
sufficiently established in the record, beside
being stated in the attestation clause, that the
testator signed the will in the presence of the
three witnesses and that the latter, in turn,
signed it in the presence of the testator and of
each other, the testator knowing that the
witnesses were signing his will; that the
witnesses signed the attestation clause before
the death of the testator; that this clause, with
the names of the witnesses in blank, was
prepared before the testator signed the will,
and that the sheet containing said clause, just
as those of the will proper, was a loose sheet,
and that all the four sheets of which the will
Exhibit A was actually composed were kept
together and are the very ones presented in
this case; and finally, that the signatures of the
testator on page 3 of said exhibit are
authentic.
It thus appearing from the record that there
are no such defects as those mentioned by the
opponents, and it having been proven that the
testator executed said will in a language known
by him and consciously, freely and
spontaneously, it would seen unnecessary to
go further, and the matter might be brought to
a close right here, by holding the will in
question valid and allowable to probate, were it
not for the fact that the trial court and the
opponents questioned the sufficiency and
validity of the attestation clause because the
sheet on which it is written is not numbered,
and it is not stated there that the testator
signed on the margin of each sheet of the will
in the presence of the three witnesses, or that
the latter signed it is the presence of the
testator and of each other, and specially
because said attestation clause is not signed
by the testator either at the margin or the
bottom thereof.
As to the numbering of the sheet containing
the attestation clause, it is true that it does not
appeal on the upper part of the sheet, but it
does not appear in its text, the pertinent part
of which is copied hereinafter, with the words,
having reference to the number of sheets of
the will, underscored, including the page
number of the attestation:
* * * We certify that the foregoing document
written in Spanish, a language known by the
testator Antonino Vergel de Dios, consisting
of three sheet actually used, correlatively
enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing
document consists of three sheets, besides
that of the clause itself, which is in singular, it
is clear that such a sheet of the attestation
clause is the fourth  and that the
will, including said sheet, has four sheets. This
description contained in the clause in question
constitutes substantial compliance with the
requirements prescribed by the law regarding
the paging. So it was held by this Court in the
case of Abangan vs. Abangan (40 Phil., 476),
where the sheet containing the attestation, as
well as the preceding one, was also not paged.
Furthermore the law, as we shall see later on,
does not require that the sheet containing
nothing but the attestation clause, wholly or in
part, be numbered or paged. Consequently this
lack of paging on the attestation sheet does
not take anything from the validity of the will.
Turning now to the question whether or not in
this clause it is stated that the testator signed
on the margin of each sheet of the will, in the
presence of the witnesses and the latter in the
presence of each other, let us see what is said
in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is
as follows:
* * * and he (the testator) signed at the
bottom of the aforesaid will in our presence
and we at his request did the same in his
presence and in that of each other as
witnesses to the will, and lastly, the testator,
as well as we, as witnesses, signed in the
same manner  on the left margin of each sheet.
(Emphasis ours.)
The underscored phrase "in the same manner"
cannot in the instant case mean, and it in fact
means nothing, but that the testator and the
witnesses signed on the left margin of each
sheet of the will "in the same manner" in which
they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and
the latter in the presence of the testator and of
each other. This phrase in the same
manner cannot, in view of the context of the
pertinent part, refer to another thing, and was
used here as a suppletory phrase to include
everything and avoid the repetition of a long
and difficult one, such as what is meant by it.
The same section 618 of the Code of Civil
Procedure, in order to avoid the repetition of
the same long phrase about the testator
having signed in the presence of the witnesses
and the latter in the presence of each other,
resorts to a similar expression in the second
paragraph and says, "as aforesaid."
Concerning the absolute absence of the
signature of the testator from the sheet
containing the attestation clause, this point
was already decided in the above cited case
of Abangan vs. Abangan, where this court held
that:
The testator's signature is not necessary in the
attestation clause because this, as its name
implies, appertains only to the witnesses and
not to the testator.
In that case of Abangan vs. Abangan  it was
held that the signature of the testator is not
necessary in the attestation clause, but the
theory is not announced that such a clause is
unnecessary to the validity to the will.
For this reason such doctrine does not annul
the judgment in the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), where in effect
the doctrine, among others, was laid down that
the attestation clause is necessary to the
validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque
is that the requirements of the law regarding
the number of the pages used, the signing of
the will and of each of its pages by the testator
in the presence of three witnesses, and the
attestation and signing of the will and of each
of its pages by the witnesses in the presence of
each other cannot be proven aliunde  but by
the attestation clause itself which must express
the complaince of the will with such
requirements. But it was not held in that case
of Uy Coque that the signature of the testator
was necessary in the attestation clause, nor
was such point discussed there, which was the
point at issue in the case of Abangan vs.
Abangan, supra.
The appellees, however, argue that such
clause in the case of Abangan vs.
Abangan begins at the bottom and on the
same sheet in which the testamentary
provision terminated, that is to say, the will
properly speaking. Even then if it is intended to
commit misrepresentation or fraud, which are
the things that with the requirements of the
law for the making and attesting of wills it is
intended to avoid, it is just the same that the
clause; as in the case of Abangan vs. Abangan,
begins at the bottom of the will properly
speaking, as, like the case before us, it is
wholly contained in a separate sheet. The fact
is that this separate sheet, containing the
attestation clause wholly or in part, is not
signed any place by the testator in the case
of Abangan vs. Abangan, as it is not in the
present case.
Section 618 of the code of Civil Procedure, as
amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in
general terms the requirements to be met by a
will executed after said Code took effect, to
wit, that the language or dialect in which it is
written be known by the testator, that it be
signed by the latter or by another person in
the name of the testator by his express
direction and in his presence, and that it be
attested and signed by three or more credible
witnesses in the presence of the testator and
of each other.
These general rules are amplified in the next
two paragraphs as to the special requirements
for the execution of the will by the testator and
the signing thereof by the witnesses, with
which the second paragraph of the section
deals, and as to the attestation clause treated
in the third and last paragraph of said section
618.
For this reason the second paragraph of this
section 618 says:
The testator or the person requested by him to
write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin,
and said pages shall be numbered correlatively
in letters placed on the upper part of each
sheet.
These are the solemnities that must surround
the execution of the will properly speaking,
without any reference whatsoever to the
attestation clause not treated in this second
paragraph. It is in this second paragraph which
deals only with the will (without including the
attestation clause), that the signature or name
of the testator and those of the witnesses are
mentioned as necessary on the left margin of
each and everyone of the sheets of the will
(not of the attestation clause), as well as the
paging of said sheet (of the will, and not of the
attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the
paging of the will also necessary in the
attestation clause? Let us see the last
paragraph of this section 618 of the Code
which already deals with the requirements for
the attestation clause. This last paragraph
reads thus:
The attestation shall state the number of
sheets or pages used, upon which the will is
written, and the fact that the testator signed
the will and every page thereof, or caused
some other person to write his name, under
his express direction, in the presence of three
witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of
the testator and of each other.
As may be seen this last paragraph refers to
the contents of the text  of the attestation, not
the requirements or signatures thereof outside
of its text. It does not require that the
attestation be signed by the testator or that
the page or sheet containing it be numbered.
From this analysis of our law now in force it
appears:
First. That the will must have an attestation
clause as a complement, without which it
cannot be probate and with which only
not aliunde (Uy Coque vs.  Navas L.
Sioca , supra) may the requirements to be
stated in its text be proven. The attestation
clause must be prepared and signed, as in the
instant case, on the same occasion on which
the will is prepared and signed, in such a way
that the possibility of fraud, deceit or
suppression of the will or the attestation clause
be reduced to a minimum; which possibility
always exists, as experience shows, in spite of
the many precautions taken by the legislator to
insure the true and free expression of one's
last will.
Second. That the will is distinct and different
from the attestation, although both are
necessary to the validity of the will, similar, in
our opinion, to a document which is not public
so long as it is not acknowledged before a
notary, the document being a distinct and Street, Malcolm, Avanceña and Johns, JJ.,
different thing from the acknowledgment, each concur.
of which must comply with different requisites,
among which is the signature of the maker
which is necessary in the document but not in
the acknowledgment and both things being
necessary to the existence of the public
document.
Third. That the will proper must meet the
requirements enumerated in the second
paragraph of section 618 of the Code of Civil
Procedure.
Fourth. That the text of the attestation clause
must express compliance with the
requirements prescribed for the will.
In the case at bar the attestation clause in
question states that the requirements
prescribed for the will were complied with, and
this is enough for it, as such attestation clause,
to be held as meeting the requirements
prescribed by the law for it.
The fact that in said clause the signature of the
testator does not appear does not affect its
validity, for, as above stated, the law does not
require that it be signed by the testator.
We find no merit in the assignment of error
raising the question as to the validity of Act
No. 2645, which is valid. For the purposes of
this decision, it is not necessary to reason out
this conclusion, it being sufficient for the
adjudication of this case to hold the first error
assigned by the appellants to have been
demonstrated.
The foregoing conclusions lead us to hold, as
we do here by hold, that the documents Exhibit
A, as the last will and testament of the
deceased Antonio Vergel de Dios, meets all the
requirements prescribed by the low now in
force and therefore it must be allowed to
probate as prayed for by the petitioner.
The judgment appealed from is reversed, and
it is ordered that the lower court proceed with
the probate of the will Exhibit A in accordance
with law, without express pronouncement as to
costs. So ordered.
G.R. No. L-18979             June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE
OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant
Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant
Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First
Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits
"A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October
2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit
"A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof
to be published for three (3) successive weeks,
previous to the time appointed, in the
newspaper "Manila chronicle", and also caused
personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a
daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to
have herself appointed as a special
administrator, to which proponent objected.
Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust
Company as special
administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son
of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to
the probate of the alleged will.
On March 19, 1959, the petitioner proponent
commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the
admission of an amended and supplemental
petition, alleging that the decedent left a will
executed in duplicate with all the legal
requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May
26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the
admission of the amended and supplemental
petition, but by order of July 20, 1959, the
court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her
amended opposition. Thereafter, the parties
presented their respective evidence, and after
several hearings the court issued the order
admitting the will and its duplicate to probate.
From this order, the oppositors appealed
directly to this Court, the amount involved
being over P200,000.00, on the ground that
the same is contrary to law and the evidence.
The evidence presented for the petitioner is to
the effect that Josefa Villacorte died in the City
of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a
last will and testament in duplicate at the
house of her daughter Mrs. Felisa Icasiano at
Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses,
namely: attorneys Justo P. Torres, Jr. and Jose
V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by
the said three instrumental witnesses on the
same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and
that the will was actually prepared by attorney
Fermin Samson, who was also present during
the execution and signing of the decedent's
last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said
three instrumental witnesses to the execution
of the decedent's last will and testament,
attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both
testified as to the due execution and
authenticity of the said will. So did the Notary
Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and
also attorneys Fermin Samson, who actually
prepared the document. The latter also
testified upon cross examination that he
prepared one original and two copies of Josefa
Villacorte last will and testament at his house
in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.
The records show that the original of the will,
which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the
end and in every page, it does not contain the
signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the
amended and supplemental petition and
marked as Exhibit "A-1" is signed by the
testatrix and her three attesting witnesses in
each and every page.
The testimony presented by the proponents of
the will tends to show that the original of the
will and its duplicate were subscribed at the
end and on the left margin of each and every
page thereof by the testatrix herself and
attested and subscribed by the three
mentioned witnesses in the testatrix's presence
and in that of one another as witnesses
(except for the missing signature of attorney
Natividad on page three (3) of the original);
that pages of the original and duplicate of said
will were duly numbered; that the attestation
clause thereof contains all the facts required by
law to be recited therein and is signed by the
aforesaid attesting witnesses; that the will is
written in the language known to and spoken
by the testatrix that the attestation clause is in
a language also known to and spoken by the
witnesses; that the will was executed on one
single occasion in duplicate copies; and that
both the original and the duplicate copies were
duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2,
1956.
Witness Natividad who testified on his failure
to sign page three (3) of the original, admits
that he may have lifted two pages instead of
one when he signed the same, but affirmed
that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert
testimony to the effect that the signatures of
the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on
the same occasion as the original, and further
aver that granting that the documents were
genuine, they were executed through mistake
and with undue influence and pressure
because the testatrix was deceived into
adopting as her last will and testament the
wishes of those who will stand to benefit from
the provisions of the will, as may be inferred
from the facts and circumstances surrounding
the execution of the will and the provisions and
dispositions thereof, whereby proponents-
appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased
and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to
look for other properties not mentioned in the
will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion
of free disposal.
We have examined the record and are
satisfied, as the trial court was, that the
testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same in the
presence of the three attesting witnesses, the
notary public who acknowledged the will; and
Atty. Samson, who actually prepared the
documents; that the will and its duplicate were
executed in Tagalog, a language known to and
spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty.
Fermin Samson, together before they were
actually signed; that the attestation clause is
also in a language known to and spoken by the
testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that
the signatures of the testatrix appearing in the
duplicate original were not written by the same
had which wrote the signatures in the original
will leaves us unconvinced, not merely because
it is directly contradicted by expert Martin
Ramos for the proponents, but principally
because of the paucity of the standards used
by him to support the conclusion that the
differences between the standard and
questioned signatures are beyond the writer's
range of normal scriptural variation. The expert
has, in fact, used as standards only three other
signatures of the testatrix besides those affixed
to the original of the testament (Exh. A); and
we feel that with so few standards the expert's
opinion and the signatures in the duplicate
could not be those of the testatrix becomes
extremely hazardous. This is particularly so
since the comparison charts Nos. 3 and 4 fail
to show convincingly that the are radical
differences that would justify the charge of
forgery, taking into account the advanced age
of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue,
the duplicate being signed right the original.
These, factors were not discussed by the
expert.
Similarly, the alleged slight variance in
blueness of the ink in the admitted and
questioned signatures does not appear reliable,
considering the standard and challenged
writings were affixed to different kinds of
paper, with different surfaces and reflecting
power. On the whole, therefore, we do not find
the testimony of the oppositor's expert
sufficient to overcome that of the notary and
the two instrumental witnesses, Torres and
Natividad (Dr. Diy being in the United States
during the trial, did not testify).
Nor do we find adequate evidence of fraud or
undue influence. The fact that some heirs are
more favored than others is proof of neither
(see In re  Butalid, 10 Phil. 27; Bugnao vs.
Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the
usual reason for making a testament;
otherwise, the decedent might as well die
intestate. The testamentary dispositions that
the heirs should not inquire into other property
and that they should respect the distribution
made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to
prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged
litigation which, as shown by ordinary
experience, often results in a sizeable portion
of the estate being diverted into the hands of
non-heirs and speculators. Whether these
clauses are valid or not is a matter to be
litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant
and exclude each other; their joining as
grounds for opposing probate shows absence
of definite evidence against the validity of the
will.
On the question of law, we hold that the
inadvertent failure of one witness to affix his
signature to one page of a testament, due to
the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to
justify denial of probate. Impossibility of
substitution of this page is assured not only
the fact that the testatrix and two other
witnesses did sign the defective page, but also
by its bearing the coincident imprint of the seal
of the notary public before whom the
testament was ratified by testatrix and all
three witnesses. The law should not be so
strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of
a single witness over whose conduct she had
no control, where the purpose of the law to
guarantee the identity of the testament and its
component pages is sufficiently attained, no
intentional or deliberate deviation existed, and
the evidence on record attests to the full
observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision
on reconsideration) "witnesses may sabotage
the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign
page three (3) was entirely through pure
oversight is shown by his own testimony as
well as by the duplicate copy of the will, which
bears a complete set of signatures in every
page. The text of the attestation clause and
the acknowledgment before the Notary Public
likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court
departs from a strict and literal application of
the statutory requirements, where the
purposes of the law are otherwise satisfied.
Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only
page signed at its foot by testator and
witnesses, but not in the left margin, could
nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the
pages of a will, the failure to make the first
page either by letters or numbers is not a fatal
defect (Lopez vs. Liboro, 81 Phil. 429). These
precedents exemplify the Court's policy to
require satisfaction of the legal requirements in
order to guard against fraud and bid faith but
without undue or unnecessary curtailment of
the testamentary privilege.
The appellants also argue that since the
original of the will is in existence and available,
the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of
original because it lacked one signature in its
third page, it is easily discerned that
oppositors-appellants run here into a dilemma;
if the original is defective and invalid, then in
law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be
probated, then the objection to the signed
duplicate need not be considered, being
superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of
the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was
produced and admitted without a new
publication does not affect the jurisdiction of
the probate court, already conferred by the
original publication of the petition for probate.
The amended petition did not substantially
alter the one first filed, but merely
supplemented it by disclosing the existence of
the duplicate, and no showing is made that
new interests were involved (the contents of
Exhibit A and A-1 are admittedly identical);
and appellants were duly notified of the
proposed amendment. It is nowhere proved or
claimed that the amendment deprived the
appellants of any substantial right, and we see
no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision
appealed from is affirmed, with costs against
appellants.
G.R. No. L-1787             August 27, 1948
Testacy of Sixto Lopez. JOSE S.
LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the
appellant opposed unsuccessfully the probate
of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who
died at the age of 83 in Balayan, Batangas, on
March 3, 1947, almost six months after the
document in question was executed. In the
court below, the present appellant specified
five grounds for his opposition, to wit: (1) that
the deceased never executed the alleged will;
(2) that his signature appearing in said will
was a forgery; (3) that at the time of the
execution of the will, he was wanting in
testamentary as well as mental capacity due to
advanced age; (4) that, if he did ever execute
said will, it was not executed and attested as
required by law, and one of the alleged
instrumental witnesses was incapacitated to
act as such; and it was procured by duress,
influence of fear and threats and undue and
improper pressure and influence on the part of
the beneficiaries instituted therein, principally
the testator's sister, Clemencia Lopez, and the
herein proponent, Jose S. Lopez; and (5) that
the signature of the testator was procured by
fraud or trick.
In this instance only one of these objections is
reiterated, formulated in these words: "That
the court a quo erred in holding that the
document Exhibit "A" was executed in all
particulars as required by law." To this
objection is added the alleged error of the
court "in allowing the petitioner to introduce
evidence that Exhibit "A" was written in a
language known to the
decedent after petitioner rested his case and
over the vigorous objection of the oppositor.
The will in question comprises two pages, each
of which is written on one side of a separate
sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing the
paging of wills is guard against fraud, and to
afford means of preventing the substitution or
of defecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the
present case, the omission to put a page
number on the first sheet, if that be necessary,
is supplied by other forms of identification
more trustworthy than the conventional
numerical words or characters. The
unnumbered page is clearly identified as the
first page by the internal sense of its contents
considered in relation to the contents of the
second page. By their meaning and coherence,
the first and second lines on the second page
are undeniably a continuation of the last
sentence of the testament, before the
attestation clause, which starts at the bottom
of the preceding page. Furthermore, the
unnumbered page contains the caption
"TESTAMENTO," the invocation of the
Almighty, and a recital that the testator was in
full use of his testamentary faculty, — all of
which, in the logical order of sequence,
precede the direction for the disposition of the
marker's property. Again, as page two contains
only the two lines above mentioned, the
attestation clause, the mark of the testator and
the signatures of the witnesses, the other
sheet can not by any possibility be taken for
other than page one. Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de
Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and
scope of the first assignment of error, the
matter of the credibility of the witnesses is
assailed under this heading. On the merits we
do not believe that the appellant's contention
deserves serious consideration. Such
contradictions in the testimony of the
instrumental witnesses as are set out in the
appellant's brief are incidents not all of which
every one of the witnesses can be supposed to
have perceived, or to recall in the same order
in which they occurred.
Everyday life and the result of investigations
made in the field of experimental psychology
show that the contradictions of witnesses
generally occur in the details of a certain
incident, after a long series of questioning, and
far from being an evidence of falsehood
constitute a demonstration of good faith.
Inasmuch as not all those who witness an
incident are impressed in like manner, it is but
natural that in relating their impressions they
should not agree in the minor details; hence,
the contradictions in their testimony. (People
vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the
instrument instead of signing his name. The
reason for this was that the testator was
suffering from "partial paralysis." While
another in testator's place might have directed
someone else to sign for him, as appellant
contends should have been done, there is
nothing curious or suspicious in the fact that
the testator chose the use of mark as the
means of authenticating his will. It was a
matter of taste or preference. Both ways are
good. A statute requiring a will to be "signed"
is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and
Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of
error, we do not share the opinion that the trial
court communicated an abuse of discretion in
allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator,
the language in which the will is drawn, after
the petitioner had rested his case and after the
opponent had moved for dismissal of the
petition on the ground of insufficiency of
evidence. It is within the discretion of the court
whether or not to admit further evidence after
the party offering the evidence has rested, and
this discretion will not be reviewed except not say that the testator knew that idiom. In
where it has clearly been abused. (64 C. J., fact, there was not even extraneous proof on
160.) More, it is within the sound discretion of the subject other than the fact that the
the court whether or not it will allow the case testator resided in a Tagalog region, from
to be reopened for the further introduction of which the court said "a presumption arises that
evidence after a motion or request for a said Maria Tapia knew the Tagalog dialect.
nonsuit, or a demurrer to the evidence, and The order of the lower court ordering the
the case may be reopened after the court has probate of the last will and testament of Don
announced its intention as to its ruling on the Sixto Lopez is affirmed, with costs.
request, motion, or demurrer, or has granted it
or has denied the same, or after the motion
has been granted, if the order has not been
written, or entered upon the minutes or
signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed.
After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to
offer evidence upon their original case, and its
ruling will not be disturbed in the appellate
court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second assignment of
error, the appellant impugns the will for its
silence on the testator's understanding of the
language used in the testament. There is no
statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel,
46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR
THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of
Court of First Instance of Southern Leyte,
(Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders
issued by the Court of First Instance of
Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the
Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the
will, the motion for reconsideration and the
motion for appointment of a special
administrator.
In the petition for probate filed with the
respondent court, the petitioner attached the
alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first
page contains the entire testamentary
dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the
left hand margin by the three (3) instrumental
witnesses. The second page which contains the
attestation clause and the acknowledgment is
signed at the end of the attestation clause by
the three (3) attesting witnesses and at the
left hand margin by the testatrix.
Since no opposition was filed after the
petitioner's compliance with the requirement of
publication, the trial court commissioned the
branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will,
who testified on its genuineness and due
execution.
The trial court, thru then Presiding Judge
Ramon C. Pamatian issued the questioned
order denying the probate of the will of
Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner
was also required to submit the names of the
intestate heirs with their corresponding
addresses so that they could be properly
notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial
court, the petitioner filed a manifestation
and/or motion, ex parte praying for a thirty-
day period within which to deliberate on any
step to be taken as a result of the disallowance
of the will. He also asked that the ten-day
period required by the court to submit the
names of intestate heirs with their addresses
be held in abeyance.
The petitioner filed a motion for
reconsideration of the order denying the
probate of the will. However, the motion
together with the previous manifestation
and/or motion could not be acted upon by the
Honorable Ramon C. Pamatian due to his
transfer to his new station at Pasig, Rizal. The
said motions or incidents were still pending
resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge
of the respondent court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the
motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In
the same order of denial, the motion for the
appointment of special administrator was
likewise denied because of the petitioner's
failure to comply with the order requiring him
to submit the names of' the intestate heirs and
their addresses.
The petitioner decided to file the present
petition.
For the validity of a formal notarial will, does
Article 805 of the Civil Code require that the
testatrix and all the three instrumental and
attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must
be subscribed at the end thereof by the
testator himself or by the testator's name
written by some other person in his presence,
and by his express direction, and attested and
subscribed by three or more credible witnesses
in the presence of the testator and of one
another.
The testator or the person requested by him to
write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the
left margin, and all the pages shall be
numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages
used upon which the will is written, and the
fact that the testator signed the will and every
page thereof, or caused some other person to
write his name, under his express direction, in
the presence of the instrumental witnesses,
and that the lacier witnesses and signed the
will and the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted
to the witnesses, it shall be interpreted to
them.
The respondent Judge interprets the above-
quoted provision of law to require that, for a
notarial will to be valid, it is not enough that
only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at
the same place or at the end, in the presence
of the testatrix and of one another because the
attesting witnesses to a will attest not merely
the will itself but also the signature of the
testator. It is not sufficient compliance to sign
the page, where the end of the will is found, at
the left hand margin of that page.
On the other hand, the petitioner maintains
that Article 805 of the Civil Code does not
make it a condition precedent or a matter of
absolute necessity for the extrinsic validity of
the wig that the signatures of the subscribing
witnesses should be specifically located at the
end of the wig after the signature of the
testatrix. He contends that it would be absurd
that the legislature intended to place so heavy
an import on the space or particular location
where the signatures are to be found as long
as this space or particular location wherein the
signatures are found is consistent with good
faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil
Code, the will must be subscribed or signed at
its end by the testator himself or by the
testator's name written by another person in
his presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation
consists in witnessing the testator's execution
of the will in order to see and take note
mentally that those things are, done which the
statute requires for the execution of a will and
that the signature of the testator exists as a
fact. On the other hand, subscription is the
signing of the witnesses' names upon the same
paper for the purpose of Identification of such
paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is
concerned, it is our considered view that the
will in this case was subscribed in a manner
which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses
on the left margin of the first page of the will
attested not only to the genuineness of the
signature of the testatrix but also the due
execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the
usual forms should be ignored, especially
where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).
The law is to be liberally construed, "the
underlying and fundamental objective
permeating the provisions on the law on wills
in this project consists in the liberalization of
the manner of their execution with the end in
view of giving the testator more freedom in
expressing his last wishes but with sufficient
safeguards and restrictions to prevent the
commission of fraud and the exercise of undue
and improper pressure and influence upon the
testator. This objective is in accord with the
modern tendency in respect to the formalities
in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian
stated in his questioned order that were not for
the defect in the place of signatures of the
witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription
were fully met and satisfied in the present case
when the instrumental witnesses signed at the
left margin of the sole page which contains all
the testamentary dispositions, especially so
when the will was properly Identified by
subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was
no question of fraud or substitution behind the
questioned order.
We have examined the will in question and
noticed that the attestation clause failed to
state the number of pages used in writing the
will. This would have been a fatal defect were
it not for the fact that, in this case, it is
discernible from the entire wig that it is really
and actually composed of only two pages duly
signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page
which contains the entirety of the
testamentary dispositions is signed by the
testatrix at the end or at the bottom while the
instrumental witnesses signed at the left
margin. The other page which is marked as
"Pagina dos" comprises the attestation clause
and the acknowledgment. The
acknowledgment itself states that "This Last
Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161,
164), this Court made the following
observations with respect to the purpose of the
requirement that the attestation clause must
state the number of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon
which the win is written, which requirement
has been held to be mandatory as an effective
safeguard against the possibility of
interpolation or omission of some of the pages
of the will to the prejudice of the heirs to
whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil.,
180; Uy Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the
attestation clause must contain a statement of
the number of sheets or pages composing the
will and that if this is missing or is omitted, it
will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination
of the will itself. But here the situation is
different. While the attestation clause does not
state the number of sheets or pages upon
which the will is written, however, the last part
of the body of the will contains a statement
that it is composed of eight pages, which
circumstance in our opinion takes this case out
of the rigid rule of construction and places it
within the realm of similar cases where a broad
and more liberal view has been adopted to
prevent the will of the testator from being
defeated by purely technical considerations.
Icasiano v. Icasiano  (11 SCRA 422, 429) has
the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the
testatrix and two other witnesses did sign the
defective page, but also by its bearing the
coincident imprint of the seal of the notary
public before whom the testament was ratified
by testatrix and all three witnesses. The law
should not be so strictly and literally
interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where
the purpose of the law to guarantee the
Identity of the testament and its component
pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence
on record attests to the fun observance of the
statutory requisites. Otherwise, as stated in
Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling
or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby
granted. The orders of the respondent court
which denied the probate of tile will, the
motion for reconsideration of the denial of
probate, and the motion for appointment of a
special administrator are set aside. The
respondent court is ordered to allow the
probate of the wig and to conduct further
proceedings in accordance with this decision.
No pronouncement on costs.
SO ORDERED.
G.R. No. L-5826             April 29, 1953
Testate estate of the late VICENTE
CAGRO. JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-
appellants.
Clouduallo Lucero and Vicente C. Santos for
appellants.
Marciano Chitongco and Zosimo B. Echanova
for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors
from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14,
1949.
The main objection insisted upon by the
appellant in that the will is fatally defective,
because its attestation clause is not signed by
the attesting witnesses. There is no question
that the signatures of the three witnesses to
the will do not appear at the bottom of the
attestation clause, although the page
containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken
by the appellant is correct. The attestation
clause is 'a memorandum of the facts
attending the execution of the will' required by
law to be made by the attesting witnesses, and
it must necessarily bear their signatures. An
unsigned attestation clause cannot be
considered as an act of the witnesses, since
the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that
signatures of the three witnesses on the left-
hand margin conform substantially to the law
and may be deemed as their signatures to the
attestation clause. This is untenable, because
said signatures are in compliance with the legal
mandate that the will be signed on the left-
hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a
subsequent occasion and in the absence of the
testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed
and the probate of the will in question denied.
So ordered with costs against the petitioner
and appellee.
Pablo, Bengzon, Montemayor, Jugo and
Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J.,  dissenting:
I dissent. In my opinion the will in question has
substantially complied with the formalities of
the law and, therefore, should be admitted to
probate . It appears that the will was signed by
the testator and was attested by three
instrumental witnesses, not only at the
bottom, but also on the left-hand margin. The
witnesses testified not only that the will was
signed by the testator in their presence and in
the presence of each other but also that when
they did so, the attestation clause was already
written thereon. Their testimony has not been
contradicted. The only objection set up by the
oppositors to the validity of the will is the fact
that the signatures of the instrumental
witnesses do not appear immediately after the
attestation clause.
This objection is too technical to be
entertained. In the case of Abangan vs.
Abangan, (40 Phil., 476), this court said that
when the testamentary dispositions "are wholly
written on only one sheet signed at the bottom
by the testator and three witnesses (as the
instant case),their signatures on the left
margin of said sheet would be completely
purposeless." In such a case, the court said,
the requirement of the signatures on the left
hand margin was not necessary because the
purpose of the law — which is to avoid the
substitution of any of the sheets of the will,
thereby changing the testator's dispositions —
has already been accomplished. We may say
the same thing in connection with the will
under consideration because while the three
instrumental witnesses did not sign
immediately by the majority that it may have
been only added on a subsequent occasion and
not at the uncontradicted testimony of said
witnesses to the effect that such attestation
clause was already written in the will when the
same was signed.
The following observation made by this court in
the Abangan case is very fitting:
The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud to avoid substitution of
wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on
this subject should be interpreted in such a
way as to attain these primordial ends. But, on
the other hand, also one must not lose sight of
the fact that it i not the object of the law to
restrain and curtail the exercise of the right to
make a will. So when an interpretation already
given assures such ends, any other
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary useless and frustrative of the
testator's last will, must be disregarded.
(supra)
We should not also overlook the liberal trend of
the New Civil Code in the matter of
interpretation of wills, the purpose of which, in
case of doubt, is to give such interpretation
that would have the effect of preventing
intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in
question should be admitted to probate.
Feria, J., concurs.
TUASON, J.,  dissenting:
I cuncur in Mr. Justice Bautista's dissenting
opinion and may add that the majority decision
erroneously sets down as a fact that the
attestation clause was no signed when the
witnesses signatures appear on the left margin
and the real and only question is whether such
signatures are legally sufficient.
The only answers, in our humble opinion, is
yes. The law on wills does not provide that the
attesting witness should sign the clause at the
bottom. In the absence of such provision,
there is no reason why signatures on the
margin are not good. A letter is not any the
less the writter's simply because it was signed,
not at the conventional place but on the side or
on top.
Feria, J., concurs.
G.R. No. 122880             April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA
CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective
notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on
16 December 1982 at the age of 80. In
refusing to give legal recognition to the due
execution of this document, the Court is
provided the opportunity to assert a few
important doctrinal rules in the execution of
notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not
contain the number of pages on which
the will is written is fatally defective. A
will whose attestation clause is not
signed by the instrumental witnesses is
fatally defective. And perhaps most
importantly, a will which does not
contain an acknowledgment, but a
mere jurat, is fatally defective. Any one
of these defects is sufficient to deny
probate. A notarial will with all three
defects is just aching for judicial
rejection.
There is a distinct and consequential reason
the Civil Code provides a comprehensive
catalog of imperatives for the proper
execution of a notarial will. Full and faithful
compliance with all the detailed requisites
under Article 805 of the Code leave little
room for doubt as to the validity in the due
execution of the notarial will. Article 806
likewise imposes another safeguard to the
validity of notarial wills — that they be
acknowledged before a notary public by the
testator and the witnesses. A notarial will
executed with indifference to these two na nasa 500 San Diego St., Lot 42, Block
codal provisions opens itself to nagging 24, Sampaloc, Manila kay Felix Azuela at
questions as to its legitimacy. ang pagkakaloob kong ito ay walang
The case stems from a petition for probate pasubali’t at kondiciones;
filed on 10 April 1984 with the Regional Trial Pangatlo- Na ninunumbrahan ko si VART
Court (RTC) of Manila. The petition filed by PAGUE na siyang nagpapatupad ng huling
petitioner Felix Azuela sought to admit to habiling ito at kagustuhan ko rin na hindi na
probate the notarial will of Eugenia E. kailanman siyang mag-lagak ng piyansiya.
Igsolo, which was notarized on 10 June Aking nilagdaan ang Huling Habilin na ito
1981. Petitioner is the son of the cousin of dito sa Maynila ika 10 ng Hunyo, 1981.
the decedent. (Sgd.)
The will, consisting of two (2) pages and EUGENIA E. IGSOLO
written in the vernacular Pilipino, read in (Tagapagmana)
full: PATUNAY NG MGA SAKSI
HULING HABILIN NI EUGENIA E. IGSOLO Ang kasulatang ito, na binubuo ng ____
SA NGALAN NG MAYKAPAL, AMEN: dahon pati ang huling dahong ito, na
AKO, si EUGENIA E. IGSOLO, nakatira sa ipinahayag sa amin ni Eugenia E. Igsolo,
500 San Diego St., Sampaloc, Manila, tagapagmana na siya niyang Huling Habilin,
pitongput siyam (79) na gulang, nasa ngayon ika-10 ng Hunyo 1981, ay nilagdaan
hustong pagi-isip, pag-unawa at memoria ay ng nasabing tagapagmana sa ilalim ng
nag-hahayag na ito na ang aking huling kasulatang nabanggit at sa kaliwang panig
habilin at testamento, at binabali wala ko ng lahat at bawa’t dahon, sa harap ng lahat
lahat ang naunang ginawang habilin o at bawa’t sa amin, at kami namang mga
testamento: saksi ay lumagda sa harap ng nasabing
Una-Hinihiling ko na ako ay mailibing sa tagapagmana at sa harap ng lahat at bawa’t
Sementerio del Norte, La Loma sang-ayong isa sa amin, sa ilalim ng nasabing kasulatan
sa kaugalian at patakaran ng simbahang at sa kaliwang panig ng lahat at bawa’t
katoliko at ang taga-pag-ingat (Executor) ng dahon ng kasulatan ito.
habiling ito ay magtatayo ng bantayog EUGENIA E. IGSOLO
upang silbing ala-ala sa akin ng aking address: 500 San Diego St.
pamilya at kaibigan; Sampaloc, Manila Res. Cert. No. A-7717-37
Pangalawa-Aking ipinagkakaloob at Issued at Manila on March 10, 1981.
isinasalin ang lahat ng karapatan sa aking QUIRINO AGRAVA
pamangkin na si Felix Azuela, na siyang address: 1228-Int. 3, Kahilum
nag-alaga sa akin sa mahabang panahon, Pandacan, Manila Res. Cert. No. A-458365
yaong mga bahay na nakatirik sa lote Issued at Manila on Jan. 21, 1981
numero 28, Block 24 at nakapangalan sa LAMBERTO C. LEAÑO
Pechaten Korporasyon, ganoon din ibinibigay address: Avenue 2, Blcok 7,
ko ang lahat ng karapatan sa bahay na Lot 61, San Gabriel, G.MA., Cavite Res.
nakatirik sa inoopahan kong lote, numero Cert. No. A-768277 issued at Carmona,
43, Block 24 na pag-aari ng Pechaten Cavite on Feb. 7, 1981
Corporation. Ipinagkakaloob kong buong JUANITO ESTRERA
buo ang lahat ng karapatan sa bahay at lupa address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will
affixed their signatures on the left-hand
margin of both pages of the will, but not at
the bottom of the attestation clause.
The probate petition adverted to only two
(2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and
one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that
the will be allowed, and that letters
testamentary be issued to the designated
executor, Vart Prague.
The petition was opposed by Geralda Aida
Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda
Castillo claimed that the will is a forgery,
and that the true purpose of its emergence
was so it could be utilized as a defense in
several court cases filed by oppositor against
petitioner, particularly for forcible entry and
usurpation of real property, all centering on
petitioner’s right to occupy the properties of
the decedent.3 It also asserted that contrary
to the representations of petitioner, the
decedent was actually survived by 12
legitimate heirs, namely her grandchildren,
who were then residing abroad. Per records,
it was subsequently alleged that decedent
was the widow of Bonifacio Igsolo, who died
in 1965,4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased
her mother by three (3) months.5
Oppositor Geralda Castillo also argued that
the will was not executed and attested to in
accordance with law. She pointed out that
decedent’s signature did not appear on the
second page of the will, and the will was not
properly acknowledged. These twin
arguments are among the central matters to
this petition.
After due trial, the RTC admitted the will to
probate, in an Order dated 10 August
1992.6 The RTC favorably took into account
the testimony of the three (3) witnesses to
the will, Quirino Agrava, Lamberto Leano,
and Juanito Estrada. The RTC also called to
fore "the modern tendency in respect to the
formalities in the execution of a will x x x
with the end in view of giving the testator
more freedom in expressing his last
wishes;"7 and from this perspective,
rebutted oppositor’s arguments that the will
was not properly executed and attested to in
accordance with law.
After a careful examination of the will and
consideration of the testimonies of the
subscribing and attesting witnesses, and
having in mind the modern tendency in
respect to the formalities in the execution of
a will, i.e., the liberalization of the
interpretation of the law on the formal
requirements of a will with the end in view
of giving the testator more freedom in
expressing his last wishes, this Court is
persuaded to rule that the will in question is
authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement,
this Court has noted that at the end of the
will after the signature of the testatrix, the
following statement is made under the sub-
title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____
dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa
harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat
at bawa’t isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the
attestation clause and the acknowledgement
and is considered by this Court as a
substantial compliance with the
requirements of the law.
On the oppositor’s contention that the
attestation clause was not signed by the
subscribing witnesses at the bottom thereof,
this Court is of the view that the signing by
the subscribing witnesses on the left margin
of the second page of the will containing the
attestation clause and acknowledgment,
instead of at the bottom thereof,
substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that
the will was not numbered correlatively in
letters placed on upper part of each page
and that the attestation did not state the
number of pages thereof, it is worthy to
note that the will is composed of only two
pages. The first page contains the entire
text of the testamentary dispositions, and
the second page contains the last portion of
the attestation clause and
acknowledgement. Such being so, the
defects are not of a serious nature as to
invalidate the will. For the same reason, the
failure of the testatrix to affix her signature
on the left margin of the second page, which
contains only the last portion of the
attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositor’s assertion that the
signature of the testatrix on the will is a
forgery, the testimonies of the three
subscribing witnesses to the will are
convincing enough to establish the
genuineness of the signature of the testatrix
and the due execution of the will.8
The Order was appealed to the Court of
Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-
law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed
the trial court and ordered the dismissal of
the petition for probate.9 The Court of
Appeals noted that the attestation clause
failed to state the number of pages used in
the will, thus rendering the will void and
undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under
Article 805 of the Civil Code that "the
number of pages used in a notarial will be
stated in the attestation clause" is merely
directory, rather than mandatory, and thus
susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the
application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him
to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof,
except the last, on the left margin, and all
the pages shall be numbered correlatively in
letters placed on the upper part of each
page.
The attestation shall state the number of
pages used upon which the will is written,
and the fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under his
express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged
before a notary public by the testator and
the witnesses. The notary public shall not be
required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision,
considered only one defect, the failure of the
attestation clause to state the number of
pages of the will. But an examination of the
will itself reveals several more deficiencies.
As admitted by petitioner himself, the
attestation clause fails to state the number
of pages of the will.12 There was an
incomplete attempt to comply with this
requisite, a space having been allotted for
the insertion of the number of pages in the
attestation clause. Yet the blank was never
filled in; hence, the requisite was left
uncomplied with.
The Court of Appeals pounced on this defect
in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca 13 and In
re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in
question was the failure of the attestation
clause to state the number of pages
contained in the will.15 In ruling that the will
could not be admitted to probate, the Court
made the following consideration which
remains highly relevant to this day: "The
purpose of requiring the number of sheets to
be stated in the attestation clause is
obvious; the document might easily be
so prepared that the removal of a sheet
would completely change the
testamentary dispositions of the will
and in the absence of a statement of the
total number of sheets such removal
might be effected by taking out the
sheet and changing the numbers at the
top of the following sheets or pages. If,
on the other hand, the total number of
sheets is stated in the attestation clause the
falsification of the document will involve the
inserting of new pages and the forging of
the signatures of the testator and witnesses
in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned
a will the attestation clause of which failed
to state the number of sheets or pages
used. This consideration alone was sufficient
for the Court to declare "unanim[ity] upon
the point that the defect pointed out in the
attesting clause is fatal."17 It was further
observed that "it cannot be denied that the x
x x requirement affords additional security
against the danger that the will may be
tampered with; and as the Legislature has
seen fit to prescribe this requirement, it
must be considered material."18
Against these cited cases, petitioner
cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein
despite the fact that the attestation clause
did not state the number of pages of the
will. Yet the appellate court itself considered
the import of these two cases, and made the
following distinction which petitioner is
unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will
(Exhibit "D"), will readily show that the
attestation does not state the number of
pages used upon which the will is written.
Hence, the Will is void and undeserving of
probate.
We are not impervious of the Decisions of
the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161
and Apolonio [Taboada] versus Hon. Avelino
Rosal, et al., 118 SCRA 195," to the effect
that a will may still be valid even if the
attestation does not contain the number of
pages used upon which the Will is written.
However, the Decisions of the Supreme
Court are not applicable in the
aforementioned appeal at bench. This is so
because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra,"
although the attestation in the subject Will
did not state the number of pages used in
the will, however, the same was found in the
last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code
of Civil Procedure, as amended by Act No.
2645, which requires that the attestation
clause shall state the number of pages or
sheets upon which the will is written, which
requirement has been held to be mandatory
as an effective safeguard against the
possibility of interpolation or omission of
some of the pages of the will to the
prejudice of the heirs to whom the property
is intended to be bequeathed (In re Will of
Andrada, 42 Phil. 180; Uy Coque vs. Navas
L. Sioca, 43 Phil., 405; Gumban vs. Gorcho,
50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to
be that the attestation clause must contain a
statement of the number of sheets or pages
composing the will and that if this is missing
or is omitted, it will have the effect of
invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by
a consideration or examination of the will
itself. But here the situation is different.
While the attestation clause does not state
the number of sheets or pages upon which
the will is written, however, the last part of
the body of the will contains a statement
that it is composed of eight pages, which
circumstance in our opinion takes this case
out of the rigid rule of construction and
places it within the realm of similar cases
where a broad and more liberal view has
been adopted to prevent the will of the
testator from being defeated by purely
technical considerations." (page 165-165,
supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino
Rosal, et al." supra, the notarial
acknowledgement in the Will states the
number of pages used in the:
"x x x
We have examined the will in question and
noticed that the attestation clause failed to
state the number of pages used in writing
the will. This would have been a fatal defect
were it not for the fact that, in this case, it is
discernible from the entire will that it is
really and actually composed of only two
pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated,
the first page which contains the entirety of
the testamentary dispositions is signed by
the testatrix at the end or at the bottom
while the instrumental witnesses signed at
the left margin. The other page which is
marked as "Pagina dos" comprises the
attestation clause and the
acknowledgment. The acknowledgment itself
states that "this Last Will and Testament
consists of two pages including this page"
(pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the
number of pages used in the will is not
stated in any part of the Will. The will does
not even contain any notarial
acknowledgment wherein the number of
pages of the will should be stated.21
Both Uy Coque  and  Andrada were decided
prior to the enactment of the Civil Code in
1950, at a time when the statutory provision
governing the formal requirement of wills
was Section
618 of the Code of Civil
Procedure.22 Reliance on these cases
remains apropos, considering that the
requirement that the attestation state the
number of pages of the will is extant from
Section 618.23 However, the enactment of
the Civil Code in 1950 did put in force a rule
of interpretation of the requirements of wills,
at least insofar as the attestation clause is
concerned, that may vary from the
philosophy that governed these two cases.
Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence,
defects and imperfections in the form of
attestation or in the language used therein
shall not render the will invalid if it is proved
that the will was in fact executed and
attested in substantial compliance with all
the requirements of article 805."
In the same vein, petitioner cites the report
of the Civil Code Commission, which stated
that "the underlying and fundamental
objective permeating the provisions on the
[law] on [wills] in this project consists in the
[liberalization] of the manner of their
execution with the end in view of giving the
testator more [freedom] in [expressing] his
last wishes. This objective is in accord with
the [modern tendency] in respect to the
formalities in the execution of
wills."24 However, petitioner conveniently
omits the qualification offered by the Code
Commission in the very same paragraph he
cites from their report, that such
liberalization be "but with sufficient
safeguards and restrictions to prevent the
commission of fraud and the exercise of
undue and improper pressure and influence
upon the testator."25
Caneda v. Court of Appeals26  features an
extensive discussion made by Justice
Regalado, speaking for the Court on the
conflicting views on the manner of
interpretation of the legal formalities
required in the execution of the attestation
clause in wills.27 Uy Coque  and Andrada are
cited therein, along with several other cases,
as examples of the application of the rule of
strict construction.28 However, the Code
Commission opted to recommend a more
liberal construction through the "substantial
compliance rule" under Article 809. A
cautionary note was struck though by
Justice J.B.L. Reyes as to how Article 809
should be applied:
x x x The rule must be limited to
disregarding those defects that can be
supplied by an examination of the will itself:
whether all the pages are consecutively
numbered; whether the signatures appear in
each and every page; whether the
subscribing witnesses are three or the will
was notarized. All these are facts that the
will itself can reveal, and defects or even
omissions concerning them in the attestation
clause can be safely disregarded. But the
total number of pages, and whether all
persons required to sign did so in the
presence of each other must
substantially appear in the attestation
clause, being the only check against
perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these
comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure
to state the number of pages of the will in
the attestation clause is one of the defects
which cannot be simply disregarded.
In Caneda itself, the Court refused to allow
the probate of a will whose attestation
clause failed to state that the witnesses
subscribed their respective signatures to the
will in the presence of the testator and of
each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated
that the rule, as it now stands, is that
omission which can be supplied by an
examination of the will itself, without the
need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will
being assailed. However, those omissions
which cannot be supplied except by
evidence aliunde would result in the
invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure
by the attestation clause to state that the
testator signed every page can be liberally
construed, since that fact can be checked by
a visual examination; while a failure by the
attestation clause to state that the witnesses
signed in one another’s presence should be
considered a fatal flaw since the attestation
is the only textual guarantee of
compliance.32
The failure of the attestation clause to state
the number of pages on which the will was
written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the
clause to state the number of pages on
which the will is written is to safeguard
against possible interpolation or omission of
one or some of its pages and to prevent any
increase or decrease in the pages.33 The
failure to state the number of pages equates
with the absence of an averment on the part
of the instrumental witnesses as to how
many pages consisted the will, the execution
of which they had ostensibly just witnessed
and subscribed to. Following Caneda, there
is substantial compliance with this
requirement if the will states elsewhere in it
how many pages it is comprised of, as was
the situation in Singson  and Taboada.
However, in this case, there could have been
no substantial compliance with the
requirements under Article 805 since there
is no statement in the attestation clause or
anywhere in the will itself as to the number
of pages which comprise the will.
At the same time, Article 809 should not
deviate from the need to comply with the
formal requirements as enumerated under
Article 805. Whatever the inclinations of the
members of the Code Commission in
incorporating Article 805, the fact remains
that they saw fit to prescribe substantially
the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure,
convinced that these remained effective
safeguards against the forgery or
intercalation of notarial wills.34 Compliance
with these requirements, however picayune
in impression, affords the public a high
degree of comfort that the testator himself
or herself had decided to convey
property post mortem in the manner
established in the will.35 The transcendent
legislative intent, even as expressed in
the cited comments of the Code
Commission, is for the fruition of the
testator’s incontestable desires, and not
for the indulgent admission of wills to
probate.
The Court could thus end here and affirm
the Court of Appeals. However, an
examination of the will itself reveals a couple
of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not
signed by the instrumental
witnesses. While the signatures of the
instrumental witnesses appear on the left-
hand margin of the will, they do not appear
at the bottom of the attestation clause which
after all consists of their averments before
the notary public.
Cagro v. Cagro36 is material on this point. As
in this case, "the signatures of the three
witnesses to the will do not appear at the
bottom of the attestation clause, although
the page containing the same is signed by
the witnesses on the left-hand
margin."37 While three (3)
Justices38 considered the signature
requirement had been substantially complied
with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the
attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of
the three witnesses to the will do not appear
at the bottom of the attestation clause,
although the page containing the same is
signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken
by the appellant is correct. The attestation
clause is "a memorandum of the facts
attending the execution of the will" required
by law to be made by the attesting
witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause
cannot be considered as an act of the
witnesses, since the omission of their
signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that
signatures of the three witnesses on the left-
hand margin conform substantially to the
law and may be deemed as their signatures
to the attestation clause. This is untenable,
because said signatures are in compliance
with the legal mandate that the will be
signed on the left-hand margin of all its
pages. If an attestation clause not signed by
the three witnesses at the bottom thereof,
be admitted as sufficient, it would be easy to
add such clause to a will on a subsequent
occasion and in the absence of the testator
and any or all of the witnesses.39
The Court today reiterates the continued
efficacy of Cagro. Article 805 particularly
segregates the requirement that the
instrumental witnesses sign each page of
the will, from the requisite that the will be
"attested and subscribed by [the
instrumental witnesses]." The respective
intents behind these two classes of signature
are distinct from each other. The signatures
on the left-hand corner of every page
signify, among others, that the witnesses
are aware that the page they are signing
forms part of the will. On the other hand,
the signatures to the attestation clause
establish that the witnesses are referring to
the statements contained in the attestation
clause itself. Indeed, the attestation clause
is separate and apart from the disposition of
the will. An unsigned attestation clause
results in an unattested will. Even if the
instrumental witnesses signed the left-hand
margin of the page containing the unsigned
attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings
in the clause, since the signatures that do
appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed
had the witnesses in this case signed the
attestation clause itself, but not the left-
hand margin of the page containing such
clause. Without diminishing the value of the
instrumental witnesses’ signatures on each
and every page, the fact must be noted that
it is the attestation clause which contains
the utterances reduced into writing of the
testamentary witnesses themselves. It is the
witnesses, and not the testator, who are
required under Article 805 to state the
number of pages used upon which the will is
written; the fact that the testator had signed
the will and every page thereof; and that
they witnessed and signed the will and all
the pages thereof in the presence of the
testator and of one another. The only proof
in the will that the witnesses have stated
these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered
to have been validly attested to by the
instrumental witnesses, as they failed to
sign the attestation clause.
Yet, there is another fatal defect to the will
on which the denial of this petition should
also hinge. The requirement under Article
806 that "every will must be acknowledged
before a notary public by the testator and
the witnesses" has also not been complied
with. The importance of this requirement is
highlighted by the fact that it had been
segregated from the other requirements
under Article 805 and entrusted into a
separate provision, Article 806. The non-
observance of Article 806 in this case is
equally as critical as the other cited flaws in
compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary
public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko
ngayong  10  ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed
as an acknowledgment. An acknowledgment
is the act of one who has executed a deed in
going before some competent officer or
court and declaring it to be his act or
deed.41 It involves an extra step undertaken
whereby the signor actually declares to the
notary that the executor of a document has
attested to the notary that the same is
his/her own free act and deed.
It might be possible to construe the
averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is
that part of an affidavit where the notary
certifies that before him/her, the document
was subscribed and sworn to by the
executor.42 Ordinarily, the language of
the jurat should avow that the document
was subscribed and sworn before the notary
public, while in this case, the notary public
averred that he himself "signed and
notarized" the document. Possibly though,
the word "ninotario" or "notarized"
encompasses the signing of and swearing in
of the executors of the document, which in
this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by
the notary public as a jurat, the will would
nonetheless remain invalid, as the express
requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed
and sworn to. The will does not present any
textual proof, much less one under oath,
that the decedent and the instrumental
witnesses executed or signed the will as
their own free act or deed. The
acknowledgment made in a will provides for
another all-important legal safeguard
against spurious wills or those made beyond
the free consent of the testator. An
acknowledgement is not an empty There is a line of thought that has disabused
meaningless act.43 The acknowledgment the notion that these two requirements be
coerces the testator and the instrumental construed as mandatory.45 Taken in
witnesses to declare before an officer of the isolation, these omissions, by themselves,
law that they had executed and subscribed may not be sufficient to deny probate to a
to the will as their own free act or deed. will. Yet even as these omissions are not
Such declaration is under oath and under decisive to the adjudication of this case,
pain of perjury, thus allowing for the they need not be dwelt on, though indicative
criminal prosecution of persons who as they may be of a general lack of due
participate in the execution of spurious wills, regard for the requirements under Article
or those executed without the free consent 805 by whoever executed the will.
of the testator. It also provides a further All told, the string of mortal defects which
degree of assurance that the testator is of the will in question suffers from makes the
certain mindset in making the testamentary probate denial inexorable.
dispositions to those persons he/she had WHEREFORE, the petition is DENIED. Costs
designated in the will. against petitioner.
It may not have been said before, but we SO ORDERED.
can assert the rule, self-evident as it is
under Article 806. A notarial will that is
not acknowledged before a notary
public by the testator and the witnesses
is fatally defective, even if it is
subscribed and sworn to before a
notary public.
There are two other requirements under
Article 805 which were not fully satisfied by
the will in question. We need not discuss
them at length, as they are no longer
material to the
disposition of this case. The provision
requires that the testator and the
instrumental witnesses sign each and every
page of the will on the left margin, except
the last; and that all the pages shall be
numbered correlatively in letters placed on
the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to
sign both pages of the will on the left
margin, her only signature appearing at the
so-called "logical end"44 of the will on its first
page. Also, the will itself is not numbered
correlatively in letters on each page, but
instead numbered with Arabic numerals.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, Petitioner, vs. HON.
JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B.
LUGAY, Respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B.
Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment
of the Court First Instance of Cebu allowing
the probate of the last will a testament of
the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the
said decease opposed the allowance of the
will (Exhibit "E"), alleging the will was
executed through fraud, deceit,
misrepresentation and undue influence; that
the said instrument was execute without the
testator having been fully informed of the
content thereof, particularly as to what
properties he was disposing and that the
supposed last will and testament was not
executed in accordance with law.
Notwithstanding her objection, the Court
allowed the probate of the said last will and
testament Hence this appeal by certiorari
which was given due
course.chanroblesvirtualawlibrarychanrobles
virtual law library
The only question presented for
determination, on which the decision of the
case hinges, is whether the supposed last
will and testament of Valente Z. Cruz
(Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of
the new Civil Code, the first requiring at
least three credible witnesses to attest and
subscribe to the will, and the second
requiring the testator and the witnesses to
acknowledge the will before a notary
public.chanroblesvirtualawlibrarychanrobles
virtual law library
Of the three instrumental witnesses thereto,
namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H. Teves,
Jr., one of them, the last named, is at the
same time the Notary Public before whom
the will was supposed to have been
acknowledged. Reduced to simpler terms,
the question was attested and subscribed by
at least three credible witnesses in the
presence of the testator and of each other,
considering that the three attesting
witnesses must appear before the notary
public to acknowledge the same. As the
third witness is the notary public himself,
petitioner argues that the result is that only
two witnesses appeared before the notary
public to acknowledge the will. On the other
hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial
court, maintains that there is substantial
compliance with the legal requirement of
having at least three attesting witnesses
even if the notary public acted as one of
them, bolstering up his stand with 57
American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for
upholding a will as against the purely
technical reason that one of the witnesses
required by law signed as certifying to an
acknowledgment of the testator's signature
under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting
claims of the parties, We are inclined to
sustain that of the appellant that the last will
and testament in question was not executed
in accordance with law. The notary public
before whom the will was acknowledged
cannot be considered as the third
instrumental witness since he cannot
acknowledge before himself his having
signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97
Phil. 258, 262; Castro v. Castro, 100 Phil.
239, 247); to own as genuine, to assent, to
admit; and "before" means in front or
preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English
Language, p. 252; Webster's New
International Dictionary 2d. p. 245.)
Consequently, if the third witness were the
notary public himself, he would have to
avow assent, or admit his having signed the
will in front of himself. This cannot be done
because he cannot split his personality into
two so that one will appear before the other
to acknowledge his participation in the
making of the will. To permit such a
situation to obtain would be sanctioning a
sheer
absurdity.chanroblesvirtualawlibrarychanrobl
es virtual law library
Furthermore, the function of a notary public
is, among others, to guard against any
illegal or immoral arrangement Balinon v. De
Leon, 50 0. G. 583.) That function would
defeated if the notary public were one of the
attesting instrumental witnesses. For them
he would be interested sustaining the
validity of the will as it directly involves him
and the validity of his own act. It would
place him in inconsistent position and the
very purpose of acknowledgment, which is
to minimize fraud (Report of Code
Commission p. 106-107), would be
thwarted.chanroblesvirtualawlibrarychanrobl
es virtual law library
Admittedly, there are American precedents
holding that notary public may, in addition,
act as a witness to the executive of the
document he has notarized. (Mahilum v. the law would not be duly in
Court Appeals, 64 0. G. 4017; 17 SCRA 482; observed.chanroblesvirtualawlibrarychanrobl
Sawyer v. Cox, 43 Ill. 130). There are es virtual law library
others holding that his signing merely as FOR ALL THE FOREGOING, the judgment
notary in a will nonetheless makes him a appealed from is hereby reversed and the
witness thereon (Ferguson v. Ferguson, 47 probate of the last will and testament of
S. E. 2d. 346; In Re Douglas Will, N. Y. S. Valente Z. Cruz (Exhibit "E") is declared not
2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, valid and hereby set
Tyson Utterback, 122 So. 496; In Re aside.chanroblesvirtualawlibrarychanrobles
Baybee's Estate 160 N. 900; W. Merill v. virtual law library
Boal, 132 A. 721; See also Trenwith v. Cost against the appellee.
Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the
law in this jurisdiction or are not decisive of
the issue herein because the notaries public
and witnesses referred to aforecited cases
merely acted as instrumental, subscribing
attesting witnesses, and not
as acknowledging witnesses. He the notary
public acted not only as attesting witness
but also acknowledging witness, a situation
not envisaged by Article 805 of the Civil
Code which reads:
ART. 806. Every will must be acknowledged
before a notary public by the testator and
the witnesses. The notary public shall not be
required to retain a copy of the will or file
another with the office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third
witness, or one the attesting and
acknowledging witnesses, would have the
effect of having only two attesting witnesses
to the will which would be in contravention
of the provisions of Article 80 be requiring at
least three credible witnesses to act as such
and of Article 806 which requires that the
testator and the required number of
witnesses must appear before the notary
public to acknowledge the will. The result
would be, as has been said, that only two
witnesses appeared before the notary public
for or that purpose. In the circumstances,
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, petitioner-
appellant,
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G.
VDA. DE YSALINA and NELDA G.
ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.
AQUINO, J.:
This case is about the dismissal of a petition
for the probate of a notarial will on the
ground that it does not bear a thirty-centavo
documentary stamp.
The Court of First Instance of Camiguin in its
"decision" of December 28, 1977 in Special
Proceeding No. 41 for the probate of the will
of the late Rogaciano Gabucan, dismissed
the proceeding (erroneously characterizes as
an "action")
The proceeding was dismissed because the
requisite documentary stamp was not
affixed to the notarial acknowledgment in
the will and, hence, according to respondent
Judge, it was not admissible in evidence,
citing section 238 of the Tax Code, now
section 250 of the 1977 Tax Code, which
reads:
SEC. 238. Effect of failure to stamp taxable
document. — An instrument, document, or
paper which is required by law to be
stamped and which has been signed, issued,
accepted, or transferred without being duly
stamped, shall not be recorded, nor shall it
or any copy thereof or any record of transfer
of the same be admitted or used in evidence
in any  court until the requisite stamp or
stamps shall have been affixed thereto and
cancelled.
No notary public or other officer authorized
to administer oaths shall add his jurat or
acknowledgment to any document subject to
documentary stamp tax unless the proper
documentary stamps are affixed thereto and Thus, it was held that the documentary
cancelled. stamp may be affixed at the time the
The probate court assumed that the notarial taxable document is presented in evidence
acknowledgment of the said will is subject to (Del Castillo vs. Madrilena 49 Phil. 749). If
the thirty-centavo documentary stamp tax the promissory note does not bear a
fixed in section 225 of the Tax Code, now documentary stamp, the court should have
section 237 of the 1977 Tax Code. allowed plaintiff's tender of a stamp to
Respondent Judge refused to reconsider the supply the deficiency. (Rodriguez vs.
dismissal in spite of petitioner's Martinez, 5 Phil. 67, 71. Note the holding in
manifestation that he had already attached Azarraga vs. Rodriguez, 9 Phil. 637, that the
the documentary stamp to the original of the lack of the documentary stamp on a
will. (See Mahilum vs. Court of Appeals, 64 document does not invalidate such
O. G. 4017, 17 SCRA 482, 486.) document. See Cia. General de Tabacos vs.
The case was brought to this Court by Jeanjaquet 12 Phil. 195, 201-2 and Delgado
means of a petition for mandamus to compel and Figueroa vs. Amenabar 16 Phil. 403,
the lower court to allow petitioner's appeal 405-6.)
from its decision. In this Court's resolution WHEREFORE, the lower court's dismissal of
of January 21, 1980 the petition for the petition for probate is reversed and set
mandamus was treated in the interest of aside. It is directed to decide the case on
substantial and speedy justice as an appeal the merits in the light of the parties'
under Republic Act No. 5440 as well as a evidence. No costs.
special civil action of certiorari under Rule 65 SO ORDERED.
of the Rules of Court.
We hold that the lower court manifestly
erred in declaring that, because no
documentary stamp was affixed to the will,
there was "no will and testament to probate"
and, consequently, the alleged "action must
of necessity be dismissed".
What the probate court should have done
was to require the petitioner or proponent to
affix the requisite thirty-centavo
documentary stamp to the notarial
acknowledgment of the will which is the
taxable portion of that document.
That procedure may be implied from the
provision of section 238 that the non-
admissibility of the document, which does
not bear the requisite documentary stamp,
subsists only "until the requisite stamp or
stamps shall have been affixed thereto and
cancelled."
G.R. No. 192916               October 11,
2010
MANUEL A. ECHAVEZ, Petitioner,
vs.
DOZEN CONSTRUCTION AND
DEVELOPMENT CORPORATION and THE
REGISTER OF DEEDS OF CEBU
CITY, Respondents.
RESOLUTION
BRION, J.:
Vicente Echavez (Vicente) was the absolute
owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959
(subject lots). On September 7, 1985,
Vicente donated the subject lots to
petitioner Manuel Echavez (Manuel) through
a Deed of Donation Mortis Causa.1 Manuel
accepted the donation.
In March 1986, Vicente executed a Contract
to Sell over the same lots in favor of Dozen
Construction and Development Corporation
(Dozen Corporation). In October 1986, they
executed two Deeds of Absolute Sale over
the same properties covered by the previous
Contract to Sell.
On November 6, 1986, Vicente died.
Emiliano Cabanig, Vicente’s nephew, filed a
petition for the settlement of Vicente’s
intestate estate. On the other hand, Manuel
filed a petition to approve Vicente’s donation
mortis causa in his favor and an action to
annul the contracts of sale Vicente executed
in favor of Dozen Corporation. These cases
were jointly heard.
The Regional Trial Court (RTC) dismissed
Manuel’s petition to approve the donation
and his action for annulment of the contracts
of sale.2 The RTC found that the execution of
a Contract to Sell in favor of Dozen
Corporation, after Vicente had donated the
lots to Manuel, was an equivocal act that
revoked the donation. The Court of Appeals
(CA) affirmed the RTC’s decision.3 The CA
held that since the donation in favor of
Manuel was a donation mortis causa,
compliance with the formalities for the
validity of wills should have been observed.
The CA found that the deed of donation did
not contain an attestation clause and was
therefore void.
The Petition for Review on Certiorari
Manuel claims that the CA should have
applied the rule on substantial compliance in
the construction of a will to Vicente’s
donation mortis causa. He insists that the
strict construction of a will was not
warranted in the absence of any indication
of bad faith, fraud, or substitution in the
execution of the Deed of Donation Mortis
Causa. He argues that the CA ignored the
Acknowledgment portion of the deed of
donation, which contains the "import and
purpose" of the attestation clause required
in the execution of wills. The
Acknowledgment reads:
BEFORE ME, Notary Public, this 7th day of
September 1985 at Talisay, Cebu, personally
appeared VICENTE S. Echavez with Res.
Cert. No. 16866094 issued on April 10, 1985
at [sic] Talisay, Cebu known to me to be the
same person who executed the foregoing
instrument of Deed of Donartion Mortis
Causa before the Notary Public and in the
presence of the foregoing three (3)
witnesses who signed this instrument before
and in the presence of each other and of the
Notary Public and all of them acknowledge
to me that the same is their voluntary act
and deed. [Emphasis in the original.]
THE COURT’S RULING
The CA correctly declared that a donation
mortis causa must comply with the
formalities prescribed by law for the validity
of wills,4 "otherwise, the donation is void
and would produce no effect." 5 Articles 805
and 806 of the Civil Code should have been
applied.
As the CA correctly found, the purported
attestation clause embodied in the
Acknowledgment portion does not contain
the number of pages on which the deed was
written.lavvphilThe exception to this rule in
Singson v. Florentino6 and Taboada v. Hon.
Rosal,7 cannot be applied to the present
case, as the facts of this case are not similar
with those of Singson and Taboada. In those
cases, the Court found that although the
attestation clause failed to state the number
of pages upon which the will was written,
the number of pages was stated in one
portion of the will. This is not the factual
situation in the present case.
Even granting that the Acknowledgment
embodies what the attestation clause
requires, we are not prepared to hold that
an attestation clause and an
acknowledgment can be merged in one
statement.
That the requirements of attestation and
acknowledgment are embodied in two
separate provisions of the Civil Code
(Articles 805 and 806, respectively)
indicates that the law contemplates two
distinct acts that serve different purposes.
An acknowledgment is made by one
executing a deed, declaring before a
competent officer or court that the deed or
act is his own. On the other hand, the
attestation of a will refers to the act of the
instrumental witnesses themselves who
certify to the execution of the instrument
before them and to the manner of its
execution.81avvphi1
Although the witnesses in the present case
acknowledged the execution of the Deed of
Donation Mortis Causa before the notary
public, this is not the avowal the law
requires from the instrumental witnesses to
the execution of a decedent’s will. An
attestation must state all the details the
third paragraph of Article 805 requires. In
the absence of the required avowal by the
witnesses themselves, no attestation clause
can be deemed embodied in the
Acknowledgement of the Deed of Donation
Mortis Causa.
Finding no reversible error committed by the
CA, the Court hereby DENIES Manuel’s
petition for review on certiorari.
SO ORDERED.
[G.R. No. L-26615. April 30, 1970.] remained mainly for viewing distant objects
Pedro V. Garcia for petitioner Antonio and not for reading print; that she was, at
REV. FATHER LUCIO V. GARCIA, Jesus de Praga, Et. Al. the time of the execution of the second will
ANTONIO JESUS DE PRAGA, MARIA on December 29, 1960, incapable of reading
NATIVIDAD DE JESUS AND DR. JAIME Leandro Sevilla & Ramon C. Aquino and and could not have read the provisions of
ROSARIO, Petitioners, v. HON. Melquiades M. Virata, Jr. for respondent the will supposedly signed by her.
CONRADO M. VASQUEZ, as Judge of the Consuelo S. Gonzales Vda. de Precilla.
Court of First Instance of Manila, 2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES
Branch and CONSUELO GONZALES VDA. Lorenzo C. Gella for respondent IN THE EXECUTION OF THE WILL; CASE AT
DE PRECILLA, Respondents. Register of Deeds of Manila. Leandro BAR.— Upon its face, the testamentary
Sevilla & Ramon C. Aquino for petitioner provisions, the attestation clause and
[G.R. No. L-26884. April 30, 1970.] administratrix. acknowledgment were crammed together
into a single sheet of paper, apparently to
REV. FATHER LUCIO V. GARCIA, Castro, Makalintal & Associates for save on space. Plainly, the testament was
ANTONIO JESUS DE PRAGA, MARIA oppositors-appellants Encarnacion not prepared with any regard for the
NATIVIDAD DE JESUS AND DR. JAIME Narciso, Et. Al. defective vision of Dña. Gliceria, the
ROSARIO, Petitioners, v. HON. typographical errors remained uncorrected
CONRADO M. VASQUEZ, as Judge of the Pedro Garcia for oppositors-appellants thereby indicating that the execution thereof
Court of First Instance of Manila, Dr. Jaime Rosario, Et. Al. must have been characterized by haste. It is
Branch V, REGISTER OF DEEDS OF difficult to understand that so important a
MANILA, and CONSUELO GONZALES Antonio Enrile Inton for oppositors- document containing the final disposition of
VDA. DE PRECILLA, Respondents. appellants Fr. Lucio V. Garcia and one’s worldly possessions should be
Antonio Jesus de Praga. embodied in an informal and untidy written
[G.R. No. L-27200. April 30, 1970.] instrument; or that the glaring spelling
Salonga, Ordoñez, Yap, Sicat & errors should have escaped her notice if she
TESTATE ESTATE OF GLICERIA A. DEL Associates for oppositors-appellants had actually retained the ability to read the
ROSARIO, deceased CONSUELO S. Severina Narciso, Et. Al. purported will and had done so.
GONZALES VDA. DE PRECILLA,
petitioner administratrix, v. SEVERINA George G. Arbolario and Sixto R. Reyes 3. ID.; ID.; ID.; EXECUTION OF WILLS;
NARCISO, ROSA NARCISO, JOSEFINA & Vicente Redor for oppositors- REQUISITES FOR VALIDITY; ART. 808, NEW
NARCISO, VICENTE MAURICIO, DELFIN appellants Natividad del Rosario CIVIL CODE — READING OF THE WILL
MAURICIO, REMEDIOS NARCISO, Sarmiento, Et. Al. TWICE TO A BLIND TESTATOR; PURPOSE.—
ENCARNACION, NARCISO, MARIA The rationale behind the requirement of
NARCISO, EDUARDO NARCISO, FR. SYLLABUS reading the will to the testator if he is blind
LUCIO V. GARCIA, ANTONIO JESUS DE or incapable of reading the will himself is to
PRAGA, MARIA NATIVIDAD DE JESUS, 1. CIVIL LAW; SUCCESSION, WILLS; make the provisions thereof known to him,
DR. JAIME DEL ROSARIO, ET AL., PROBATE OF WILLS; GROUND FOR so that he may be able to object if they are
NATIVIDAD DEL ROSARIO-SARMIENTO DISALLOWANCE; TESTATRIX’S DEFECTIVE not in accordance with his wishes.
and PASCUALA NARCISO- EYESIGHT AS UNABLING HER TO READ THE
MANAHAN, Oppositors-Appellants. PROVISIONS OF LATER WILL.— The 4. ID.; ID.; ID.; ID.; ID.; ID.; NOT
declarations in court of the opthalmologist COMPLIED WITH IN INSTANT CASE.—
Antonio Enrile Inton for petitioner Rev. as to the condition of the testatrix’s eyesight Where as in the 1960 will there is nothing in
Father Lucio V. Garcia. fully establish the fact that her vision the record to show that the requisites of Art.
808 of the Civil Code of the Philippines that
"if the testator is blind, the will shall be read
to him twice," have not been complied with,
the said 1960 will suffer from infirmity that
affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE
OF DECEASED PERSONS;
ADMINISTRATORS; GROUNDS FOR
REMOVAL; ACQUISITION OF INTEREST
ADVERSE TO THAT OF THE ESTATE MAKES
THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR.—
Considering that the alleged deed of sale
was executed when Gliceria del Rosario was
already practically blind and that the
consideration given seems unconscionably
small for the properties, there was likelihood
that a case for annulment might be filed
against the estate or heirs of Alfonso
Precilla. And the administratrix being the
widow and heir of the alleged transferee,
cannot be expected to sue herself in an
action to recover property that may turn out
to belong to the estate. This, plus her
conduct in securing new copies of the
owner’s duplicate of titles without the court’s
knowledge and authority and having the
contract bind the land through issuance of
new titles in her husband’s name, cannot
but expose her to the charge of unfitness or
unsuitability to discharge the trust, justifying
her removal from the administration of the
estate.
6. REMEDIAL LAW; NOTICE OF LIS
PENDENS; ACTION MUST AFFECT "THE
TITLE OR THE RIGHT OF POSSESSION OF
REAL PROPERTY." — On the matter of lis
pendens, the provisions of the Rules of
Court are clear: notice of the pendency of an
action may be recorded in the office of the
register of deeds of the province in which
the property is situated, if the action affects
"the title or the right of possession of (such)
real property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO
INSTANT CASE.— The issue in controversy
here is simply the fitness or unfitness of said
special administratrix to continue holding
the trust, it does not involve or affect at all
the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case
(L-26615) is not an action that can properly
be annotated in the record of the titles to
the properties.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the
order of the Court of First Instance of Manila
(in Sp. Proc. No. 62618) admitting to
probate the alleged last will an, testament of
the late Gliceria Avelino del Rosario dated 29
December 1960. G.R. Nos. L-26615 and L-
2684 are separate petitions for mandamus
filed by certain alleged heirs of said
decedent seeking (1) to compel the probate
court to remove Consuelo S. Gonzales-
Precilla as special administratrix of the
estate, for conflict of interest, to appoint a
new one in her stead; and (2) to order the
Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735,
81736 ,and 81737, registered in the name
of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased
Gliceria A. del Rosario.
Insofar as pertinent to the issues involved
herein, the facts of these cases may be
stated as follows:chanrob1es virtual 1aw
library
Gliceria Avelino del Rosario died unmarried
in the City of Manila on 2 September 1965,
leaving no descendents, ascendants, brother
or sister. At the time of her death, she was
said to be 90 years old more or less, and
possessed of an estate consisting mostly of
real properties.
On 17 September 1965, Consuelo S.
Gonzales Vda. de Precilla, a niece of the
deceased, petitioned the Court of First
Instance of Manila for probate of the alleged
last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960,
and for her appointment as special
administratrix of the latter’s estate, said to
be valued at about P100,000.00, pending
the appointment of a regular administrator
thereof.
The petition was opposed separately by
several groups of alleged heirs: (1) Rev. Fr.
Lucio V. Garcia, a legatee named in an
earlier will executed by Gliceria A. del
Rosario on 9 June 1956; (2) Jaime Rosario
and children, relatives and legatees in both
the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards
of the deceased and legatees in the 1956
and 1960 wills; (3) Remedios, Encarnacion,
and Eduardo, all surnamed Narciso; (4)
Natividad del Rosario-Sarmiento; (5) Maria
Narciso; (6) Pascuala Narciso de Manahan;
(7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed
Mauricio, — the latter five groups of persons
all claiming to be relatives of Doña Gliceria
within the fifth civil degree. The oppositions
invariably charged that the instrument
executed in 1960 was not intended by the
deceased to be her true will; that the
signatures of the deceased appearing in the
will was procured through undue and
improper pressure and influence the part of
the beneficiaries and/or other persons; that
the testatrix did not know the object of her
bounty; that the instrument itself reveals
irregularities in its execution, and that the
formalities required by law for such
execution have not been complied with.
Oppositor Lucio V. Garcia, who also
presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime
Rosario in registering opposition to the
appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter
possesses interest adverse to the estate.
After the parties were duly heard, the
probate court, in its order of 2 October
1965, granted petitioner’s prayer and
appointed her special administratrix of the
estate upon a bond for P30,000.00. The
order was premised on the fact the
petitioner was managing the properties
belonging to the estate even during the
lifetime of the deceased, and to appoint
another person as administrator or co
administrator at that stage of the proceeding
would only result in further confusion and
difficulties.
On 30 September 1965, oppositors Jaime
Rosario, Et. Al. filed with the probate court
an urgent motion to require the Hongkong &
Shanghai Bank to report all withdrawals
made against the funds of the deceased
after 2 September 1965. The court denied
this motion on 22 October 1965 for being
premature, it being unaware that such
deposit in the name of the deceased existed.
1 supposedly
On 14 December 1965, the same sets of
oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus
and Fr. Lucio V. Garcia, petitioned the court
for the immediate removal of the special
administratrix. It was their claim that the
special administratrix and her deceased
husband, Alfonso Precilla, 2 had caused
Gliceria A. del Rosario to execute a
simulated and fraudulent deed of absolute
sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry
sum of P30,000.00 ownership of 3 parcels of
land and the improvements thereon located
on Quiapo and San Nicolas, Manila, with a
total assessed value of P334,050.00.
Oppositors contended that since it is the
duty of the administrator to protect and
conserve the properties of the estate, and it
may become necessary that, an action for
the annulment of the deed of sale land for
recovery of the aforementioned parcels of
land be filed against the special
administratrix, as wife and heir of Alfonso
Precilla, the removal of the said
administratrix was imperative.
On 17 December 1965, the same oppositors
prayed the court for an order directing the
Special Administratrix to deposit with the
Clerk of Court all certificates of title
belonging to the estate. It was alleged that
on 22 October 1965, or after her
appointment, petitioner Consuelo Gonzales
Vda. de Precilla, in her capacity as special
administratrix of the estate of the deceased
Gliceria A. del Rosario, filed with Branch IV
of the Court of First Instance of Manila a
motion for the issuance of new copies of the
owner’s duplicates of certain certificates of
title in the name of Gliceria del Rosario,
needed by her "in the
preparation of the inventory" of the
properties constituting the estate. The
motion having been granted, new copies of
the owner’s duplicates of certificates
appearing the name of Gliceria del Rosario
(among which were TCT Nos. 66201, 66202
and 66204) were issued on 15 November
1965. On 8 December 1965, according to
the oppositors, the same special
administratrix presented to the Register of
Deeds the deed of sale involving properties
covered by TCT Nos. 66201, 66202 and
66204 supposedly executed by Gliceria del
Rosario on 10 January 1961 in favor of
Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new
certificates (Nos. 81735, 81736 and 81737)
were issued in the name of Alfonso Precilla,
married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an
order admitting to probate the 1960 will of
Gliceria A. del Rosario (Exhibit "D"). In
declaring the due execution of the will, the
probate court took note that no evidence
had been presented to establish that the
testatrix was not of sound mind when the
will was executed; that the fact that she had
prepared an earlier will did not, prevent her
from executing another one thereafter; that
the fact that the 1956 will consisted of 12
pages whereas the 1960 testament was
contained in one page does not render the
latter invalid; that, the erasures and
alterations in the instrument were
insignificant to warrant rejection; that the
inconsistencies in the testimonies of the
instrumental witnesses which were noted by
the oppositors are even indicative of their
truthfulness. The probate court, also
considering that petitioner had already
shown capacity to administer the properties
of the estate and that from the provisions of
the will she stands as the person most
concerned and interested therein, appointed
said petitioner regular administratrix with a
bond for P50,000.00. From this order all the
oppositors appealed, the case being
docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate
court resolved the oppositors’ motion of 14
December 1965 for the removal of the then
special administratrix, as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the
motion to remove the special administratrix
and to appoint another one in her stead, is
in order that an action may be filed against
the special administratrix for the annulment
of the deed of sale executed by the
decedent on January 10, 1961. Under
existing documents, the properties sold
pursuant to the said deed of absolute sale
no longer forms part of the estate. The
alleged conflict of interest is accordingly not
between different claimants of the same
estate. If it is desired by the movants that
an action be filed by them to annul the
aforesaid deed absolute sale, it is not
necessary that the special administratrix be
removed and that another one be appointed
to file such action. Such a course of action
would only produce confusion and difficulties
in the settlement of the estate. The movants
may file the aforesaid proceedings,
preferably in an independent action, to
secure the nullity of the deed of absolute
even without leave of this court:"
As regard the motion of 17 December 1965
asking for the deposit in court of the titles in
the name of the decedent, the same was
also denied, for the reason that if the
movants were referring to the old titles, they
could no longer be produced, and if they
meant the new duplicate copies thereof that
were issued at the instance of the special
administratrix, there would be no necessity
therefor, because they were already
cancelled and other certificates were issued
in the name of Alfonso Precilla. This order
precipitated the oppositors’ filing in this
Court of a petition for mandamus (G.R. No.
L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v.
Hon. Judge Conrado M. Vasquez, Et. Al.),
which was given due course on 6 October
1966.
On 15 December 1965, with that motion for
removal pending in the court, the oppositors
requested the Register of Deeds of Manila to
annotate a notice of lis pendens in the
records of TCT Nos. 81735, 81736, and
81737 in the name of Alfonso Precilla. And
when said official refused to do so, they
applied to the probate court (in Sp. Proc.
No. 62618) for an order to compel the
Register of Deeds to annotate a lis pendens
notice in the aforementioned titles
contending that the matter of removal and
appointment of the administratrix, involving
TCT Nos. 81735, 81736, and 81737, was
already before the Supreme Court. Upon
denial of this motion on 12 November 1966,
oppositors filed another mandamus action,
this time against the probate court and the
Register of Deeds. The case was docketed
and given due course in this Court as G.R.
No. L-26864.
Foremost of the questions to be determined
here concerns the correctness of the order
allowing the probate of the 1960 will.
The records of the probate proceeding fully
establish the fact that the testatrix, Gliceria
A. del Rosario, during her lifetime, executed
two wills: one on 9 June 1956 consisting of
12 pages and written in Spanish, a language
that she knew and spoke, witnessed by
Messrs. Antonio Cabrera, Jesus Y. Ayala and
Valentin Marquez, and acknowledged before
notary public Jose Ayala; and another dated
29 December 1960, consisting of 1 page and
written in Tagalog, witnessed by Messrs.
Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before
notary public Remigio M. Tividad.
Called to testify on the due execution of the
1960 will, instrumental witnesses Decena,
Lopez and Rosales uniformly declared that
they were individually requested by Alfonso
Precilla (the late husband of petitioner
special administratrix) to witness the
execution of the last will of Doña Gliceria A.
del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon
of 29 December 1960; that the testatrix at
the time was apparently of clear and sound
mind, although she was being aided by
Precilla when she walked; 3 that the will,
which was already prepared, was first read
"silently" by the testatrix herself before she
signed it; 4 that he three witnesses
thereafter signed the will in the presence of
the testatrix and the notary public and of
one another. There is also testimony that
after the testatrix and the witnesses to the
will acknowledged the instrument to be their
voluntary act and deed, the notary public
asked for their respective residence
certificates which were handed to him by
Alfonso Precilla, clipped together; 5 that
after comparing them with the numbers
already written on the will, the notary public
filled in the blanks in the instrument with the
date, 29 January 1960, before he affixed his
signature and seal thereto. 6 They also
testified that on that occasion no pressure or
influence has been exerted by any person
upon the testatrix to execute the will.
Of course, the interest and active
participation of Alfonso Precilla in the signing
of this 1960 will are evident from the
records. The will appeared to have been
prepared by one who is not conversant with
the spelling of Tagalog words, and it has
been shown that Alfonso Precilla is a
Cebuano who speaks Tagalog with a Visayan
accent. 7 The witnesses to the will, two of
whom are fellow Visayans, 8 admitted their
relationship or closeness to Precilla. 9 It was
Precilla who instructed them to go to the
house of Gliceria del Rosario on 29
December 1960 to witness an important
document, 10 and who took their residence
certificates from them a few days before the
will was signed. 11 Precilla had met the
notary public and witnesses Rosales and
Lopez at the door of the residence of the old
woman; he ushered them to the room at the
second floor where the signing of the
document took place; 12 then he fetched
witness Decena from the latter’s
haberdashery shop a few doors away and
brought him to, the house the testatrix. 13
And when the will was actually executed
Precilla was present. 14
The oppositors-appellants in the present
case, however, challenging the correctness
of the probate court’s ruling, maintain that
on 29 December 1960 the eyesight of
Gliceria del Rosario was so poor and
defective that she could not have read the
provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and near."cralaw virtua1aw library
Rosales.
(pages 20-21, t.s.n., hearing of 23 March
On this point, we find the declarations in 1966)
court of Dr. Jesus V. Tamesis very material
and illuminating. Said ophthalmologist, The records also show that although Dr.
whose expertise was admitted by both Tamesis operated of the left eye of the
parties, testified, among other things, that decedent at the Lourdes Hospital on 8
when Doña Gliceria del Rosario saw him for August 1960; as of 23 August 1960, inspite
consultation on 11 March 1960 he found her of the glasses her vision was only "counting
left eye to have cataract (opaque lens), 15 fingers," 17 at five feet. The cross-
and that it was "above normal in pressure", examination of the doctor further elicited the
denoting a possible glaucoma, a disease that following responses:jgc:chanrobles.com.ph
leads to blindness 16 As to the conditions of
her right eye, Dr. Tamesis "Q After she was discharged from the
declared:jgc:chanrobles.com.ph hospital you prescribed lenses for her, or
glasses?
"Q But is there anything here in the entry
appearing in the other documents Exhibits "A After her discharge from the hospital, she
3-B, 3-C and 3-D from which you could was coming to my clinic for further
inform the court as to the condition of the examination and then sometime later
vision of the patient as to the right eve? glasses were prescribed.
x              x              x
"A Under date of August 30, 1960, is the
record of refraction. that is setting of glass
by myself which showed that the right eye "Q And the glasses prescribed by you
with my prescription of glasses had a vision enabled her to read, Doctor?
of 2 over 60 (20/60) and for the left eye
with her correction 20 over 300 (20/300). "A As far as my record is concerned, with
the glasses for the left eye which I
"Q In layman’s language, Doctor, what is the prescribed — the eye which I operated —
significance of that notation that the right she could see only forms but not read. That
had a degree of 20 over 60 (20/60)? is on the left eye.
"A It meant that eye at least would be able "Q How about the right eye?
to recognize objects or persons at a
minimum distance of twenty feet. "A The same, although the vision on the
right eye is even better than the left eye."
"Q But would that grade enable the patient (pages 34. 85. t.s.n., hearing of 23 March
to read print? 1966).
"A Apparently that is only a record for Then, confronted with a medical certificate
distance vision, for distance sight, not for (Exhibit H) issued by him on 29 November
1965 certifying that Gliceria del Rosario was
provided with aphakic lenses and "had been
under medical supervision up to 1963 with
apparently good vision", the doctor had this
to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently
good vision you mean that she was able to
read?
"A No, not necessarily, only able to go
around, take care of herself and see. This I
can tell you, this report was made on pure
recollections and I recall she was using her
glasses although I recall also that we have
to give her medicines to improve her vision,
some medicines to improve her identification
some more.
x              x              x
"Q What about the vision in the right eve,
was that corrected by the glasses?
"A Yes, with the new prescription which I
issued on 80 August 1960. It is in the
clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant
objects."cralaw virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23
March 1966).
The foregoing testimony of the
ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of
the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the
fact that notwithstanding the operation and
removal of the cataract in her left eye and
her being fitted with aphakic lens (used by
cataract patients), her vision remained
mainly for viewing distant objects and not
for reading print. Thus, the conclusion is
inescapable that with the condition of her
eyesight in August, 1960, and there is no
evidence that it had improved by 29
December 1960, Gliceria del Rosario was
incapable f reading, and could not have read
the provisions of the will supposedly signed
by her on 29 December 1960. It is worth
noting that the instrumental witnesses
stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight
of the alleged testatrix, the appearance of
the will, Exhibit "D", acquires striking
significance. Upon its face, the testamentary
provisions, the attestation clause and
acknowledgment were crammed together
into a single sheet of paper, to much so that
the words had to be written very close on
the top, bottom and two sides of the paper,
leaving no margin whatsoever; the word
"and" had to be written by the symbol" &",
apparently to save on space. Plainly, the
testament was not prepared with any regard
for the defective vision of Doña Gliceria.
Further, typographical errors like "HULINH"
for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and
"acknowledged" for "acknowledge’’,
remained uncorrected, thereby indicating
that execution thereof must have been
characterized by haste. It is difficult to
understand that so important a document
containing the final disposition of one’s
worldly possessions should be embodied in
an informal and untidily written instrument;
or that the glaring spelling errors should
have escaped her notice if she had actually
retained the ability to read the purported will
and had done so. The record is thus
convincing that the supposed testatrix could
not have physically read or understood the
alleged testament, Exhibit "D", and that its
admission to probate was erroneous and
should be reversed.
That Doña Gliceria should be able to greet
her guests on her birthday, arrange flowers
and attend to kitchen tasks shortly prior to
the alleged execution of the testament
Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no
way proves; that she was able to read a
closely typed page, since the acts shown do
not require vision at close range. It must be
remembered that with the natural lenses
removed, her eyes had lost the power of
adjustment to near vision, the substituted
glass lenses being rigid and uncontrollable
by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of
ability to see at normal reading distances.
Writing or signing of one’s name, when
sufficiently practiced, becomes automatic, so
that one need only to have a rough
indication of the place where the signature is
to be affixed in order to be able to write it.
Indeed, a close examination of the checks,
amplified in the photograph, Exhibit "O", et
seq., reinforces the contention of oppositors
that the alleged testatrix could not see at
normal reading distance: the signatures in
the checks are written far above the printed
base, lines, and the names of the payees as
well as the amounts written do not appear
to be in the handwriting of the alleged
testatrix, being in a much firmer and more
fluid hand than hers.
Thus, for all intents and purpose of the rules
on probate, the deceased Gliceria del
Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the
due execution of her will would have
required observance of the provisions of
Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will
shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the
notary public before whom the will is
acknowledged."cralaw virtua1aw library
The rationale behind the requirement of
reading the will to the testator if he is blind
or incapable of reading the will himself (as
when he is illiterate), 18 is to make the
provisions thereof known to him, so that he
may be able to object if they are not in
accordance with his wishes. That the aim of
the law is to insure that the dispositions of
the will are properly communicated to and
understood by the handicapped testator,
thus making them truly reflective of his
desire, is evidenced by the requirement that
the will should be read to the latter, not only
once but twice, by two different persons,
and that the witnesses have to act within
the range of his (the testator’s) other
senses. 19
In connection with the will here in question,
there is nothing in the records to show that
the above requisites have been complied
with. Clearly, as already stated, the 1960
will sought to be probated suffers from
infirmity that affects its due execution.
We also find merit in the complaint of
oppositors Lucio V. Garcia, Et Al., against
the denial by the probate court of their
petition for the removal of Consuelo
Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased
Doña Gliceria (Petition, G.R. No. L-26615,
Annex "B").
The oppositors’ petition was based allegedly
on the existence in the special administratrix
of an interest adverse to that of the estate.
It was their contention that through fraud
her husband had caused the deceased
Gliceria del Rosario to execute a deed of
sale, dated 10 January 1961, by virtue of
which the latter purportedly conveyed unto
said Alfonso D. Precilla, married to Consuelo
Gonzales y Narciso, the ownership of 3
parcels of land and the improvements
thereon, assessed at P334,050.00, for the
sum of P30,000.00.
In denying the petition, the probate court, in
its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the
properties were already sold no longer form
part of the estate. The conflict of interest
would not be between the estate and third
parties, but among the different claimants of
said properties, in which case, according to
the court, the participation of the special
administratrix in the action for annulment
that may be brought would not be
necessary.
The error in this line of reasoning lies in the
fact that what was being questioned was
precisely the validity of the conveyance or
sale of the properties. In short, if proper,
the action for annulment would have to be
undertaken on behalf of the estate by the
special administratrix, affecting as it does
the property or rights of the deceased. 20
For the rule is that only where there is no
special proceeding for the settlement of the
estate of the deceased may the legal heirs
commence an action arising out of a right
belonging to their ancestor. 21
There is no doubt that to settle the question
of the due execution and validity of the deed
of sale, an ordinary and separate action
would have to be instituted, the matter not
falling within the competence of the probate
court. 22 Considering the facts then before
it, i.e., the alleged deed of sale having been
executed by Gliceria del Rosario on 10
January 1961, when she was already
practically blind; and that the consideration
of P30,000.00 seems to be unconscionably
small for properties with a total assessed
value of P334,050.00, there was likelihood
that a case for annulment might indeed be
filed against the estate or heirs of Alfonso
Precilla. And the administratrix, being the
widow and heir of the alleged transferee,
cannot be expected to sue herself in an
action to recover property that may turn out
to belong to the estate. 22 Not only this, but
the conduct of the special administratrix in
securing new copies of the owner’s
duplicates of TCT Nos. 66201, 66202, and
66204, without the court’s knowledge or
authority, and on the pretext that she
needed them in the preparation of the
inventory of the estate, when she must have
already known by then that the properties
covered therein were already "conveyed" to
her husband by the deceased, being the
latter’s successor, and having the contract
bind the land through issuance of new titles
in her husband’s name cannot but expose
her to the charge of unfitness or
unsuitableness to discharge the trust,
justifying her removal from the
administration of the estate.
With respect to the orders of the court a quo
denying (1) the oppositors’ motion to
require the Hongkong and Shanghai Bank to
report all withdrawals made against the
funds of the deceased after 2 September
1965 and (2) the motion for annotation of a
lis pendens notice on TCT Nos. 81735,
81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of
22 October 1965 (Annex "H") that it could
not have taken action on the complaint
against the alleged withdrawals from the
bank deposits of the deceased, because as
of that time the court had not yet been
apprised that such deposits exist.
Furthermore, as explained by the special
administratrix in her pleading of 30 October
1965, the withdrawals referred to by the
oppositors could be those covered by checks
issued in the name of Gliceria del Rosario
during her lifetime but cleared only after her
death. That explanation, which not only
appears plausible but has not been rebutted
by the petitioners-oppositors, negates any
charge of grave abuse in connection with the
issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-
26864), the provisions of the Rules of Court
are clear: notice of the pendency of an
action may be recorded in the office of the
register of deeds of the province in which
the property is situated, if the action affects
"the title or the right of possession of (such)
real property." 23 In the case at bar, the
pending action which oppositors seek to
annotate in the records of TCT Nos. 81735,
81736, and 81737 is the mandamus
proceeding filed in this Court (G.R. No. L-
26615). As previously discussed in this
opinion, however, that case is concerned
merely with the correctness of the denial by
the probate court of the motion for the
removal of Consuelo Gonzales Vda. de
Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In
short, the issue in controversy there is
simply the fitness or unfitness of said special
administratrix to continue holding the trust;
it does not involve or affect at all the title to,
or possession of, the properties covered by
said TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-
26615) is not an action that can properly be
annotated in the record of the titles to the
properties.
FOR THE FOREGOING REASONS, the order
of the court below allowing to probate the
alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside. The petition
in G.R. No. L-26615 being meritorious, the
appealed order is set aside and the court
below is ordered to remove the
administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs
intestate of the deceased Doña Gliceria
Avelino del Rosario as special administrator
for the purpose of instituting action on
behalf of her estate to recover the properties
allegedly sold by her to the late Alfonso D.
Precilla. And in Case G.R. No. L-26864,
petition is dismissed. No costs.
Concencion, C.J., Dizon, Makalintal,
Fernando, Teehankee and Villamor, JJ.,
concur.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last
Will and Testament of the Deceased
Brigido Alvarado, CESAR
ALVARADO, Petitioner, vs. HON. RAMON
G. GAVIOLA, JR., Presiding Justice,
HON. MA. ROSARIO QUETULIO LOSA
and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate
Appellate Court, First Division (Civil
Cases), and BAYANI MA.
RINO, Respondents.
Vicente R. Redor for petitioner.chanrobles
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Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision
dated 11 April 1986 1 of the First Civil Cases
Division of the then Intermediate Appellate
Court, now Court of Appeals, which affirmed
the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido
Alvarado.chanroblesvirtualawlibrarychanrobl
es virtual law library
On 5 November 1977, the 79-year old
Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he
disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed
holographic will at the time awaiting probate
before Branch 4 of the Regional Trial Court
of sta. Cruz,
Laguna.chanroblesvirtualawlibrarychanrobles
virtual law library
As testified to by the three instrumental
witnesses, the notary public and by private
respondent who were present at the
execution, the testator did not read the final
draft of the will himself. Instead, private
respondent, as the lawyer who drafted the
eight-paged document, read the same aloud
in the presence of the testator, the three
instrumental witnesses and the notary
public. The latter four followed the reading
with their own respective copies previously
furnished
them.chanroblesvirtualawlibrarychanrobles
virtual law library
Meanwhile, Brigido's holographic will was
subsequently admitted to probate on 9
December 1977. On the 29th day of the
same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was
executed changing some dispositions in the
notarial will to generate cash for the
testator's eye operation. Brigido was then
suffering from glaucoma. But the
disinheritance and revocatory clauses were
unchanged. As in the case of the notarial
will, the testator did not personally read the
final draft of the codicil. Instead, it was
private respondent who read it aloud in his
presence and in the presence of the three
instrumental witnesses (same as those of
the notarial will) and the notary public who
followed the reading using their own
copies.chanroblesvirtualawlibrarychanrobles
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A petition for the probate of the notarial will
and codicil was filed upon the testator's
death on 3 January 1979 by private
respondent as executor with the Court of
First Instance, now Regional Trial Court, of
Siniloan, Laguna. 5 Petitioner, in turn, filed
an Opposition on the following grounds: that
the will sought to be probated was not
executed and attested as required by law;
that the testator was insane or otherwise
mentally incapacitated to make a will at the
time of its execution due to senility and old
age; that the will was executed under
duress, or influence of fear and threats; that
it was procured by undue and improper
pressure and influence on the part of the
beneficiary who stands to get the lion's
share of the testator's estate; and lastly,
that the signature of the testator was
procured by fraud or
trick.chanroblesvirtualawlibrarychanrobles
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When the oppositor (petitioner) failed to
substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on
27 June 1983 from which an appeal was
made to respondent court. The main thrust
of the appeal was that the deceased was
blind within the meaning of the law at the
time his "Huling Habilin" and the codicil
attached thereto was executed; that since
the reading required by Art. 808 of the Civil
Code was admittedly not complied with,
probate of the deceased's last will and
codicil should have been
denied.chanroblesvirtualawlibrarychanrobles
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On 11 April 1986, the Court of Appeals
rendered the decision under review with the
following findings: that Brigido Alvarado was
not blind at the time his last will and codicil
were executed; that assuming his blindness,
the reading requirement of Art. 808 was
substantially complied with when both
documents were read aloud to the testator
with each of the three instrumental
witnesses and the notary public following
the reading with their respective copies of
the instruments. The appellate court then
concluded that although Art. 808 was not
followed to the letter, there was substantial
compliance since its purpose of making
known to the testator the contents of the
drafted will was
served.chanroblesvirtualawlibrarychanrobles
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The issues now before us can be stated
thus: Was Brigido Alvarado blind for purpose
of Art, 808 at the time his "Huling Habilin"
and its codicil were executed? If so, was the
double-reading requirement of said article
complied with?chanrobles virtual law library
Regarding the first issue, there is no dispute
on the following facts: Brigido Alvarado was
not totally blind at the time the will and
codicil were executed. However, his vision
on both eyes was only of "counting fingers
at three (3) feet" by reason of the glaucoma
which he had been suffering from for several
years and even prior to his first consultation
with an eye specialist on
14 December
1977.chanroblesvirtualawlibrarychanrobles
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The point of dispute is whether the foregoing
circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the
notary public before whom the will is
acknowledged.
Petitioner contends that although his father
was not totally blind when the will and
codicil were executed, he can be so
considered within the scope of the term as it
is used in Art. 808. To support his stand,
petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto
Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained
that although the testator could visualize
fingers at three (3) feet, he could no longer
read either printed or handwritten matters
as of 14 December 1977, the day of his first
consultation. 8chanrobles virtual law library
On the other hand, the Court of Appeals,
contrary to the medical testimony, held that
the testator could still read on the day the
will and the codicil were executed but chose
not to do so because of "poor
eyesight." 9 Since the testator was still
capable of reading at that time, the court a
quo concluded that Art. 808 need not be
complied
with.chanroblesvirtualawlibrarychanrobles
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We agree with petitioner in this
respect.chanroblesvirtualawlibrarychanroble
s virtual law library
Regardless of respondent's staunch
contention that the testator was still capable
of reading at the time his will and codicil
were prepared, the fact remains and this
was testified to by his witnesses, that
Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision
making it necessary for private respondent
to do the actual reading for
him.chanroblesvirtualawlibrarychanrobles
virtual law library
The following pronouncement in Garcia
vs.  Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art.
808, to wit:
The rationale behind the requirement of
reading the will to the testator if  he is blind
or incapable of reading the will himself (as
when he is illiterate), is to make the
provisions thereof known to him, so that he
may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808
applies not only to blind testators but also to
those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading
the final drafts of his will and codicil on the
separate occasions of their execution due to
his "poor," "defective," or "blurred" vision,
there can be no other course for us but to
conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in
Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether
or not the lawyer who drafted the will and
codicil did so confortably with his
instructions. Hence, to consider his will as
validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808
had been complied
with.chanroblesvirtualawlibrarychanrobles
virtual law library
Article 808 requires that in case of testators
like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental
witnesses and, again, by the notary public
before whom the will was acknowledged.
The purpose is to make known to the
incapacitated testator the contents of the
document before signing and to give him an
opportunity to object if anything is contrary
to his
instructions.chanroblesvirtualawlibrarychanr
obles virtual law library
That Art. 808 was not followed strictly is
beyond cavil. Instead of the notary public
and an instrumental witness, it was the
lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil
who read the same aloud to the testator,
and read them only once, not twice as Art.
808
requires.chanroblesvirtualawlibrarychanroble
s virtual law library
Private respondent however insists that
there was substantial compliance and that
the single reading suffices for purposes of
the law. On the other hand, petitioner
maintains that the only valid compliance or
compliance to the letter and since it is
admitted that neither the notary public nor
an instrumental witness read the contents of
the will and codicil to Brigido, probate of the
latter's will and codicil should have been
disallowed.chanroblesvirtualawlibrarychanro
bles virtual law library
We sustain private respondent's stand and
necessarily, the petition must be
denied.chanroblesvirtualawlibrarychanrobles
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This Court has held in a number of occasions
that substantial compliance is acceptable
where the purpose of the law has been
satisfied, the reason being that the
solemnities surrounding the execution of
wills are intended to protect the testator
from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible
as to destroy the testamentary
privilege. 14chanrobles virtual law library
In the case at bar, private respondent read
the testator's will and codicil aloud in the
presence of the testator, his three
instrumental witnesses, and the notary
public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that
the contents read corresponded with his
instructions. Only then did the signing and
acknowledgement take place. There is no
evidence, and petitioner does not so allege,
that the contents of the will and codicil were
not sufficiently made known and
communicated to the testator. On the
contrary, with respect to the "Huling
Habilin," the day of the execution was not
the first time that Brigido had affirmed the
truth and authenticity of the contents of the
draft. The uncontradicted testimony of Atty.
Rino is that Brigido Alvarado already
acknowledged that the will was drafted in
accordance with his expressed wishes even
prior to 5 November 1977 when Atty. Rino
went to the testator's residence precisely for
the purpose of securing his conformity to the
draft. 15chanrobles virtual law library
Moreover, it was not only Atty. Rino who
read the documents on
5 November and 29 December 1977. The
notary public and the three instrumental
witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente
O. Evidente (one of the three instrumental
witnesses and the testator's physician)
asked the testator whether the contents of
the document were of his own free will.
Brigido answered in the affirmative. 16 With
four persons following the reading word for
word with their own copies, it can be safely
concluded that the testator was reasonably
assured that what was read to him (those
which he affirmed were in accordance with
his instructions), were the terms actually
appearing on the typewritten documents.
This is especially true when we consider the
fact that the three instrumental witnesses
were persons known to the testator, one
being his physician (Dr. Evidente) and
another (Potenciano C. Ranieses) being
known to him since
childhood.chanroblesvirtualawlibrarychanrob
les virtual law library
The spirit behind the law was served though
the letter was not. Although there should be
strict compliance with the substantial
requirements of the law in order to insure
the authenticity of the will, the formal
imperfections should be brushed aside when
they do not affect its purpose and which,
when taken into account, may only defeat
the testator's will. 17chanrobles virtual law
library
As a final word to convince petitioner of the
propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals,
we quote the following pronouncement
in Abangan v.  Abangan, 18 to wit:
The object of the solemnities surrounding
the execution of wills is to close the door
against bad faith and fraud, to avoid the
substitution of wills and testaments and to
guaranty their truth and authenticity.
Therefore the laws on the subject should be
interpreted in such a way as to attain these
primordial ends. But, on the other hand,
also one must not lose sight of the fact
that  it is not the object of the law to restrain
and curtail the exercise of the right to make
a will.  So when an interpretation already
given assures such ends, any other
interpretation whatsoever, that adds nothing
but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's will, must be
disregarded (emphasis supplied).
Brigido Alvarado had expressed his last
wishes in clear and unmistakable terms in
his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside
fro the mere reason that a legal requirement
intended for his protection was not followed
strictly when such compliance had been
rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to
the incapacitated testator the contents of
the draft of his will, had already been
accomplished. To reiterate, substantial
compliance suffices where the purpose has
been
served.chanroblesvirtualawlibrarychanrobles
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WHEREFORE, the petition is DENIED and the
assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case
has remained pending, this decision is
immediately executory. Costs against
petitioner.chanroblesvirtualawlibrarychanrob
les virtual law library
SO ORDERED.
[G.R. No. 27440. December 24, 1927.] This is an appeal from a judgment denying a
petition for the probate of a will alleged to
JOSE VILLAFLOR, Petitioner-Appellant, have been executed by one Gregoria Villaflor
v. DEOGRACIAS TOBIAS ET who died in the municipality of Santo
AL., Oppositors-Appellees. Domingo, Province of Ilocos Sur on October
7, 1925. The petition was presented by Jose
Simeon Ramos and Araneta & Zaragoza Villaflor , Deogracias Tobias, and several
for Appellant. other whose names do not appear in the
record, contested the will upon the following
Vicente Foz and Antonio Directo grounds: (1) That it was not signed by the
for Appellees. alleged testatrix personally though she was
well able to do so at the time of the
SYLLABUS execution of the document; (2) that said
1. WILLS; ATTESTATION CLAUSE; testatrix did not authorize any one to sign
SIGNATURE OF TESTATOR. — The the alleged will in her name; (3) that both
attestation clause of a will was written on a before and after the execution of the
separate page and not on the last page of document, Gregoria Villaflor signed various
the body of the document. It appeared from documents by thumb marks; (4) that
the document itself that if the clause had although it is true that the testatrix
been written on the said last page, there requested that the will be prepared, she
would not have been sufficient space on that nevertheless refused to sign it because it
page for the signatures of the witnesses to was contrary to her desires and instructions;
the clause. All of the pages, including that (5) that subsequent to the date upon which
upon which the attestation clause was the alleged will was executed, Gregoria
written, bore the signatures of all of the Villaflor on several occasions stated that it
witnesses and the name of the testatrix was was not her testament; (6) that the alleged
written by another person at her request will was not executed or signed in
and in the places required by law. Held, that conformity with the law.
in these circumstances the writing of the
attestation clause on a separate page did The grounds upon which the court below
not invalidate the will and that the writing of based the rejection of the document are
the name of the testatrix by another person thus stated in its decision.
at her request was in sufficient compliance
with the law. "After a careful examination of all the
evidence of record, this court is of opinion
that it has been sufficiently proved that
DECISION Claro Lazo, the person who is alleged to
have written the name of the testatrix in her
behalf and by her express direction,
OSTRAND, J.: subscribed the name and surname of the
testatrix and signed the will in question
without Rufino D. Soliven, one of the
attesting witnesses, being present; and that
neither was said Rufino D. Soliven present
when Vicente Tecderas, one of the attesting
witnesses, signed it; and lastly, when Rufino
D. Soliven signed the will the witness
Vicente Tacderas was not present.
"Besides the foregoing defect, which the
court believes fatal, it also finds that the will
in question, marked Exhibit B of the
applicant, was typewritten on eight catalan
sheets, one separated from the others; that
the attestation clause was written on a
separate sheet, marked page 9, when said
clause could have been written totally or
partially on page 8, since one-half of this
latter page is blank.
"In the opinion of the court, all these
circumstances tend to make the authenticity
and due execution of the will in question
very doubtful and suspicious. And if the
testimony very doubtful and suspicious. And
if the testimony of the witnesses for the
opposition should be taken into account as
well as the circumstance that the testatrix
Gregoria Villaflor has neither signed nor
subscribed the alleged will, notwithstanding
the fact that it has been proven in the
record, that on July 12, 1923, the day on
which it is alleged the said will was
executed, the testatrix was in good and
sound health, although she could not walk
on her own feet inasmuch as she was then
suffering from rheumatism or partial
paralysis of the lower extremities, and that
on July 27, and May 25, 1923, the testatrix
Gregoria Villaflor used to mark with her
thumb, if she did not sign, the document she
executed, as it was proven during the trial
by Exhibits 1 and 2 of the opponents, the
doubt and suspicion which this court
entertains in regard to the authenticity of
the will in question, becomes a certainty
that said testament is false."cralaw
virtua1aw library
We are reluctant to set aside, the findings of
the court belong but they are, in our
opinion, so clearly without sufficient support
in the record that we are constrained to
reject them. The will in question is dated
July 12, 1923, and was prepared by a
lawyer, Eustaquio Gallardo, and as far as
appearance go, was executed in strict
compliance with the provisions of section
618 of the Code of Civil Procedure for the
execution of wills. The testatrix’s name was
signed by one Claro Lazo, a clerk in the
office of the municipal treasurer of Santo
Domingo, and the attesting witnesses were
Vicente Tacderas, municipal president,
Rufino D. Soliven, chief of police, and
Mariano Pizarro, municipal treasurer, all of
the town of Santo Domingo. The finding of
the court below that the witness Soliven was
not present when Claro Lazo signed the
name of the testatrix and when Vicente
Tacderas signed as witness, is based on the
fact that, in testifying in this case, Claro
Lazo upon being asked to enumerate the
names of the persons present at the time of
the signing of the document, omitted the
name of Soliven. But it appears from the
transcript of the testimony that he
afterwards corrected his original statement
and testified that Soliven, as well as the
other witnesses to the will, was present
while all of the signatures were affixed. This
is in harmony with the testimony of all the
instrumental witnesses and is undoubtedly
true; there is, indeed, nothing strange or
unusual in a mistake such as that made by
Lazo. It may be noted that it is not disputed
that the lawyer Gallardo was present during
the whole proceeding and as he appears to
have possessed full knowledge of the formal
requirements for the execution of a will, it is the Code.
highly improbable that the would have
allowed the will in question to be signed There is some testimony on the part of the
without the presence of the testatrix and of contestants to the effect that the testatrix
all of the witnesses. on various occasions, subsequent to the
execution of the will, had stated that it was
That the attestation clause of the will is not in conformity with her instructions and
written on a separate page and not on the that it was not her will. Assuming that such
last page of the body of the document is, in statements were made, we can give them
our opinion, a matter of minor importance but little importance. The testatrix was an
and is explained by the fact that if the old woman and might well have made the
clause had been written on the eighth page statements by way of justification in
of the will in direct continuation of the body conversation with persons who considered
thereof, there would not have been sufficient themselves wronged by the provisions of her
space on that page for the signatures of the will, but expressions of that kind cannot, of
witnesses to the clause. It is also to be course, work the revocation of the
observed that all of the pages, including that document. The testatrix lived for over two
upon which the attestation clause is written, years after the will if she was dissatisfied
bear the signatures of all of the witnesses with the first.
and that there is no question whatever as to
the genuineness of said signatures. For the reason stated the appealed
judgment is hereby reversed and it is
The fact that the name of the testatrix was ordered that the document in question be
written by another person, and that she did admitted to probate as the last will and
not sign by thumb-mark, is easily explained testament of the deceased Gregoria Villaflor.
and is evidently due to an attempt on the No costs will be allowed. So ordered.
part of the lawyer Gallardo to comply strictly
with the following clause in the Spanish text
of section 618 of the Code of Civil
Procedure: "Excepto en el caso a que se
refiere el articulo anterior, no sera valido
para la transmission de bienes muebles e
inmuebles, ni los gravara y afectara, ningun
testamento a menos que este escrito y que
haya sido firmando por el testador, a que
lleve el nombre de este, escrito por otra
persona en su presencia y bajo su direccion
expresa, . . ." The making of a finger mark
is not "escribir" and it may be noted that
Gallardo apparently is a good Spanish
scholar; that it does not appear that he
knows the English language; and that he
therefore probably used the Spanish text of
G.R. No. 103554 May 28, 1993 will.1 It was declared therein, among other
TEODORO CANEDA, LORENZA CANEDA, things, that the testator was leaving by way
TERESA CANEDA, JUAN CABALLERO, of legacies and devises his real and personal
AUREA CABALLERO, OSCAR LAROSA, properties to Presentacion Gaviola, Angel
HELEN CABALLERO, SANTOS Abatayo, Rogelio Abatayo, Isabelito
CABALLERO, PABLO CABALLERO, Abatayo, Benoni G. Cabrera and Marcosa
VICTOR RAGA, MAURICIA RAGA, Alcantara, all of whom do not appear to be
QUIRICA RAGA, RUPERTO ABAPO, related to the testator.2
represented herein by his Attorney-in- Four months later, or on April 4, 1979,
Fact, ARMSTICIA * ABAPO VELANO, and Mateo Caballero himself filed a petition
CONSESO CANEDA, represented herein docketed as Special Proceeding No. 3899-R
by his heirs, JESUS CANEDA, before Branch II of the then Court of First
NATIVIDAD CANEDA and ARTURO Instance of Cebu seeking the probate of his
CANEDA, petitioners, last will and testament. The probate court
vs. set the petition for hearing on August 20,
HON. COURT OF APPEALS and WILLIAM 1979 but the same and subsequent
CABRERA, as Special Administrator of scheduled hearings were postponed for one
the Estate of Mateo reason to another. On May 29, 1980, the
Caballero, respondents. testator passed away before his petition
Palma, Palma & Associates for petitioners. could finally be heard by the probate
Emilio Lumontad, Jr. for private court.3 On February 25, 1981, Benoni
respondents. Cabrera, on of the legatees named in the
will, sough his appointment as special
REGALADO, J.: administrator of the testator's estate, the
Presented for resolution by this Court in the estimated value of which was P24,000.00,
present petition for review on certiorari is and he was so appointed by the probate
the issue of whether or not the attestation court in its order of March 6, 1981.4
clause contained in the last will and Thereafter, herein petitioners, claiming to be
testament of the late Mateo Caballero nephews and nieces of the testator,
complies with the requirements of Article instituted a second petition, entitled "In the
805, in relation to Article 809, of the Civil Matter of the Intestate Estate of Mateo
Code. Caballero" and docketed as Special
The records show that on December 5, Proceeding No. 3965-R, before Branch IX of
1978, Mateo Caballero, a widower without the aforesaid Court of First Instance of
any children and already in the twilight Cebu. On October 18, 1982, herein
years of his life, executed a last will and petitioners had their said petition intestate
testament at his residence in Talisay, Cebu proceeding consolidated with Special
before three attesting witnesses, namely, Proceeding No. 3899-R in Branch II of the
Cipriano Labuca, Gregorio Cabando and Court of First Instance of Cebu and opposed
Flaviano Toregosa. The said testator was thereat the probate of the Testator's will and
duly assisted by his lawyer, Atty. Emilio the appointment of a special administrator
Lumontad, and a notary public, Atty. Filoteo for his estate.5
Manigos, in the preparation of that last
Benoni Cabrera died on February 8, 1982
hence the probate court, now known as
Branch XV of the Regional Trial Court of
Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter,
on July 20, 1983, it issued an order for the
return of the records of Special Proceeding
No. 3965-R to the archives since the testate
proceeding for the probate of the will had to
be heard and resolved first. On March 26,
1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special
Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the
allowance of the testator's will on the
ground that on the alleged date of its
execution, the testator was already in the
poor state of health such that he could not
have possibly executed the same.
Petitioners likewise reiterated the issue as to
the genuineness of the signature of the
testator therein.7
On the other hand, one of the attesting
witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that
the testator executed the will in question in
their presence while he was of sound and
disposing mind and that, contrary to the
assertions of the oppositors, Mateo
Caballero was in good health and was not
unduly influenced in any way in the
execution of his will. Labuca also testified
that he and the other witnesses attested and
signed the will in the presence of the
testator and of each other. The other two
attesting witnesses were not presented in
the probate hearing as the had died by
then.8
On April 5, 1988, the probate court rendered
a decision declaring the will in question as
the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two
witnesses of the oppositors cannot overcome
the positive testimonies of Atty. Filoteo
Manigos and Cipriano Labuca who clearly
told the Court that indeed Mateo Caballero
executed the Last Will and Testament now
marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo
Caballero who initiated the probate of his
Will during his lifetime when he caused the
filing of the original petition now marked
Exhibit "D" clearly underscores the fact that
this was indeed his Last Will. At the start,
counsel for the oppositors manifested that
he would want the signature of Mateo
Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would
seem that despite their avowal and intention
for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came
out of it because they abandoned the idea
and instead presented Aurea Caballero and
Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that
Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in
accordance with all the requisites of the
law.9
Undaunted by the said judgment of the
probate court, petitioners elevated the case
in the Court of Appeals in CA-G.R. CV No.
19669. They asserted therein that the will in
question is null and void for the reason that
its attestation clause is fatally defective
since it fails to specifically state that the
instrumental witnesses to the will witnessed
the testator signing the will in their presence
and that they also signed the will and all the
pages thereof in the presence of the testator
and of one another.
On October 15, 1991, respondent court
promulgated its decision 10 affirming that of
the trial court, and ruling that the
attestation clause in the last will of Mateo
Caballero substantially complies with Article
805 of the Civil Code, thus:
The question therefore is whether the
attestation clause in question may be
considered as having substantialy complied
with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause
which the oppositors claim to be defective is
"we do certify that the testament was read
by him and the attestator, Mateo Caballero,
has published unto us the foregoing will
consisting of THREE PAGES, including the
acknowledgment, each page numbered
correlatively in letters of the upper part of
each page, as his Last Will and
Testament, and he has signed the same and
every page thereof, on the spaces provided
for his signature and on the left hand
margin in the presence of the said testator
and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance
and no evidence need be presented to
indicate the meaning that the said will was
signed by the testator and by them (the
witnesses) in the presence of all of them and
of one another. Or as the language of the
law would have it that the testator signed
the will "in the presence of the instrumental
witnesses, and that the latter witnessed and
signed the will and all the pages thereof in
the presence of the testator and of one
another." If not completely or ideally perfect
in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in
substantial compliance with the requirement
of the law." 11
Petitioners moved for the reconsideration of
the said ruling of respondent court, but the
same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent
court has ruled upon said issue in a manner
not in accord with the law and settled
jurisprudence on the matter and are now
questioning once more, on the same ground
as that raised before respondent court, the
validity of the attestation clause in the last
will of Mateo Caballero.
We find the present petition to be
meritorious, as we shall shortly hereafter,
after some prefatory observations which we
feel should be made in aid of the rationale
for our resolution of the controversy.
1. A will has been defined as a species of
conveyance whereby a person is permitted,
with the formalities prescribed by law, to
control to a certain degree the disposition of
his estate after his death. 13 Under the Civil
Code, there are two kinds of wills which a
testator may execute.14 the first kind is the
ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of
the Code. Article 805 requires that:
Art. 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him
to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof,
except the last, on the left margin, and all
the pages shall be numbered correlatively in
letters placed on the upper part of each
page.
The attestation should state the number of
pages used upon which the will is written,
and the fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under his
express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not
known to the witness, it shall be interpreted
to them.
In addition, the ordinary will must be
acknowledged before a notary public by a
testator and the attesting witness. 15 hence
it is likewise known as notarial will. Where
the attestator is deaf or deaf-mute, Article
807 requires that he must personally read
the will, if able to do so. Otherwise, he
should designate two persons who would
read the will and communicate its contents
to him in a practicable manner. On the other
hand, if the testator is blind, the will should
be read to him twice; once, by anyone of
the witnesses thereto, and then again, by
the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will,
which Article 810 defines as one that is
entirely written, dated, and signed by the
testator himself. This kind of will, unlike the
ordinary type, requires no attestation by
witnesses. A common requirement in both
kinds of will is that they should be in writing
and must have been executed in a language
or dialect known to the testator. 17
However, in the case of an ordinary or
attested will, its attestation clause need not
be written in a language or dialect known to
the testator since it does not form part of
the testamentary disposition. Furthermore,
the language used in the attestation clause
likewise need not even be known to the
attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a
case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of
an ordinary will whereby the attesting
witnesses certify that the instrument has
been executed before them and to the
manner of the execution the same. 19 It is a
separate memorandum or record of the facts
surrounding the conduct of execution and
once signed by the witnesses, it gives
affirmation to the fact that compliance with
the essential formalities required by law has
been observed. 20 It is made for the purpose
of preserving in a permanent form a record
of the facts that attended the execution of a
particular will, so that in case of failure of
the memory of the attesting witnesses, or
other casualty, such facts may still be
proved. 21
Under the third paragraph of Article 805,
such a clause, the complete lack of which
would result in the invalidity of the
will, 22 should state (1) the number of the
pages used  upon which the will is written;
(2) that the testator signed, or expressly
caused another to sign, the will and every
page thereof in the presence of the attesting
witnesses; and (3) that the attesting
witnesses witnessed the signing by the
testator of the will and all its
pages, and that said witnesses also signed
the will  and every page thereof in the
presence of the testator and of one another.
The purpose of the law in requiring the
clause to state the number of pages on
which the will is written is to safeguard
against possible interpolation or omission of
one or some of its pages and to prevent any
increase or decrease in the pages; 23 whereas
the subscription of the signature of the
testator and the attesting witnesses is made
for the purpose of authentication and
identification, and thus indicates that the will
is the very same instrument executed by the
testator and attested to by the witnesses.24
Further, by attesting and subscribing to the
will, the witnesses thereby declare the due
execution of the will as embodied in the
attestation clause.25 The attestation clause,
therefore, provide strong legal guaranties
for the due execution of a will and to insure
the authenticity thereof.26 As it appertains
only to the witnesses and not to the
testator, it need be signed only by
them.27 Where it is left unsigned, it would
result in the invalidation of the will as it
would be possible and easy to add the
clause on a subsequent occasion in the
absence of the testator and its witnesses.28
In its report, the Code Commission
commented on the reasons of the law for
requiring the formalities to be followed in
the execution of wills, in the following
manner:
The underlying and fundamental objectives
permeating the provisions on the law on
wills in this Project consists in the
liberalization of the manner of their
execution with the end in view of giving the
testator more freedom in expressing his last
wishes, but with sufficient safeguards and
restrictions to prevent the commission of
fraud and the exercise of undue and
improper pressure and influence upon the
testator.
This objective is in accord with the modern
tendency with respect to the formalities in
the execution of wills. . . .29
2. An examination of the last will and
testament of Mateo Caballero shows that it
is comprised of three sheets all of which
have been numbered correlatively, with the
left margin of each page thereof bearing the
respective signatures of the testator and the
three attesting witnesses. The part of the
will containing the testamentary dispositions
is expressed in the Cebuano-Visayan dialect
and is signed at the foot thereof by the
testator. The attestation clause in question,
on the other hand, is recited in the English
language and is likewise signed at the end
thereof by the three attesting witnesses
hereto.30 Since it is the proverbial bone of
contention, we reproduce it again for facility
of reference:
We, the undersigned attesting Witnesses,
whose Residences and postal addresses
appear on the Opposite of our respective
names, we do hereby certify that the
Testament was read by him and the
testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of
THREE PAGES, including the
Acknowledgment, each page numbered
correlatively in the letters on the upper part
of each page, as his Last Will and Testament
and he has the same and every page
thereof, on the spaces provided for his
signature and on the left hand margin, in
the presence of the said testator and in the
presence of each and all of us.
It will be noted that Article 805 requires that
the witness should both attest and subscribe
to the will in the presence of the testator
and of one another. "Attestation" and
"subscription" differ in meaning. Attestation
is the act of senses, while subscription is the
act of the hand. The former is mental, the
latter mechanical, and to attest a will is to
know that it was published as such, and to
certify the facts required to constitute an
actual and legal publication; but to subscribe
a paper published as a will is only to write
on the same paper the names of the
witnesses, for the sole purpose of
identification.31
In Taboada vs. Rizal,32 we clarified that
attestation consists in witnessing the
testator's execution of the will in order to
see and take note mentally that those things
are done which the statute requires for the
execution of a will and that the signature of
the testator exists as a fact. On the other
hand, subscription is the signing of the
witnesses' names upon the same paper for
the purpose of identification of such paper
as the will which was executed by the
testator. As it involves a mental act, there
would be no means, therefore, of
ascertaining by a physical examination of
the will whether the witnesses had indeed
signed in the presence of the testator and of
each other unless this is substantially
expressed in the attestation.
It is contended by petitioners that the
aforequoted attestation clause, in
contravention of the express requirements
of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to
specifically state the fact that the attesting
witnesses the testator sign the will and all
its pages in their presence and that they,
the witnesses, likewise signed the will and
every page thereof in the presence of the
testator and of each other. We agree.
What is fairly apparent upon a careful
reading of the attestation clause herein
assailed is the fact that while it recites that
the testator indeed signed the will and all its
pages in the presence of the three attesting
witnesses and states as well the number of
pages that were used, the same does not
expressly state therein the circumstance
that said witnesses subscribed their
respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same
and every page thereof, on the spaces
provided for his signature and on the left
hand margin," obviously refers to the
testator and not the instrumental witnesses
as it is immediately preceded by the words
"as his Last Will and Testament." On the
other hand, although the words "in the
presence of the testator and in the presence
of each and all of us" may, at first blush,
appear to likewise signify and refer to the
witnesses, it must, however, be interpreted
as referring only to the testator signing in
the presence of the witnesses since said
phrase immediately follows the words
"he has signed the same and every page
thereof, on the spaces provided
for his signature and on the left hand
margin." What is then clearly lacking, in the
final logical analysis , is the statement that
the witnesses signed the will and every page
thereof in the presence of the testator and
of one another.
It is our considered view that the absence of
that statement required by law is a fatal
defect or imperfection which must
necessarily result in the disallowance of the
will that is here sought to be admitted to
probate. Petitioners are correct in pointing
out that the aforestated defect in the
attestation clause obviously cannot be
characterized as merely involving the form
of the will or the language used therein
which would warrant the application of the
substantial compliance rule, as
contemplated in the pertinent provision
thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the  form of attestation or
in the language used therein shall not render
the will invalid if it is not proved that the will
was in fact executed and attested in
substantial compliance with all the
requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation
clause is indeed subscribed at the end
thereof and at the left margin of each page
by the three attesting witnesses, it certainly
cannot be conclusively inferred therefrom
that the said witness affixed their respective
signatures in the presence of the testator
and of each other since, as petitioners
correctly observed, the presence of said
signatures only establishes the fact that it
was indeed signed, but it does not prove
that the attesting witnesses did subscribe to
the will in the presence of the testator and
of each other. The execution of a will is
supposed to be one act so that where the
testator and the witnesses sign on various
days or occasions and in various
combinations, the will cannot be stamped
with the imprimatur of effectivity.33
We believe that the further comment of
former Justice J.B.L. Reyes34 regarding
Article 809, wherein he urged caution in the
application of the substantial compliance
rule therein, is correct and should be applied
in the case under consideration, as well as
to future cases with similar questions:
. . . The rule must be limited to disregarding
those defects that can be supplied by an
examination of the will itself: whether all the
pages are consecutively numbered; whether
the signatures appear in each and every
page; whether the subscribing witnesses are
three or the will was notarized. All theses
are facts that the will itself can reveal, and
defects or even omissions concerning them
in the attestation clause can be safely
disregarded. But the total number of
pages, and whether all persons required to
sign did so in the presence of each other
must substantially appear in the attestation
clause, being the only check against perjury
in the probate proceedings. (Emphasis
ours.)
3. We stress once more that under Article
809, the defects and imperfections must
only be with respect to the form of the
attestation or the language employed
therein. Such defects or imperfections would
not render a will invalid should it be proved
that the will was really executed and
attested in compliance with Article 805. In
this regard, however, the manner of proving
the due execution and attestation has been
held to be limited to merely an examination
of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply
where the attestation clause totally omits
the fact that the attesting witnesses signed
each and every page of the will in the
presence of the testator and of each
other.35 In such a situation, the defect is not
only in the form or language of the
attestation clause but the total absence of a
specific element required by Article 805 to
be specifically stated in the attestation
clause of a will. That is precisely the defect
complained of in the present case since
there is no plausible way by which we can
read into the questioned attestation clause
statement, or an implication thereof, that
the attesting witness did actually bear
witness to the signing by the testator of the
will and all of its pages and that said
instrumental witnesses also signed the will
and every page thereof in the presence of
the testator and of one another.
Furthermore, the rule on substantial
compliance in Article 809 cannot be revoked
or relied on by respondents since it
presupposes that the defects in the
attestation clause can be cured or supplied
by the text of the will or a consideration of
matters apparent therefrom which would
provide the data not expressed in the
attestation clause or from which it may
necessarily be gleaned or clearly inferred
that the acts not stated in the omitted
textual requirements were actually complied
within the execution of the will. In other
words, defects must be remedied by intrinsic
evidence supplied by the will itself.
In the case at bar, contrarily, proof of the
acts required to have been performed by the
attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields
no basis whatsoever from with such facts
may be plausibly deduced. What private
respondent insists on are the testimonies of
his witnesses alleging that they saw the
compliance with such requirements by the
instrumental witnesses, oblivious of the fact
that he is thereby resorting to extrinsic
evidence to prove the same and would
accordingly be doing by the indirection what
in law he cannot do directly.
4. Prior to the advent of the Civil Code on
August 30, 1950, there was a divergence of
views as to which manner of interpretation
should be followed in resolving issues
centering on compliance with the legal
formalities required in the execution of wills.
The formal requirements were at that time
embodied primarily in Section 618 of Act No.
190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645,
but the provisions respecting said formalities
found in Act. No. 190 and the amendment
thereto were practically reproduced and
adopted in the Civil Code.
One view advance the liberal or substantial
compliance rule. This was first laid down in
the case of Abangan vs. Abangan,36 where it
was held that the object of the solemnities
surrounding the execution of wills is to close
the door against bad faith and fraud, to
avoid substitution of wills and testaments
and to guarantee their truth and
authenticity. Therefore, the laws on this
subject should be interpreted in such a way
as to attain these primordial ends.
Nonetheless, it was also emphasized that
one must not lose sight of the fact that it is
not the object of the law to restrain and
curtail the exercise of the right to make a
will, hence when an interpretation already
given assures such ends, any other
interpretation whatsoever that adds nothing
but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The
subsequent cases of Avera vs.
Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs.
Vergel de Dios, et al.,41 and Nayve vs. Mojal,
et al.42 all adhered to this position.
The other view which advocated the rule
that statutes which prescribe the formalities
that should be observed in the execution of
wills are mandatory in nature and are to be
strictly construed was followed in the
subsequent cases of In the Matter of the
Estate of Saguinsin,43 In re Will of
Andrada,44 Uy Coque vs. Sioca,45 In re
Estate of Neumark, 46 and Sano vs.
47
Quintana.
Gumban vs. Gorecho, et al.,48 provided the
Court with the occasion to clarify the
seemingly conflicting decisions in the
aforementioned cases. In said case
of Gumban, the attestation clause had failed
to state that the witnesses signed the will
and each and every page thereof on the left
margin in the presence of the testator. The
will in question was disallowed, with these
reasons therefor:
In support of their argument on the
assignment of error above-mentioned,
appellants rely on a series of cases of this
court beginning with (I)n the Matter of the
(E)state of Saguinsin ([1920], 41 Phil.,
875), continuing with In re  Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas
L. Sioca [1922], 43 Phil., 405), and In
re  Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs.
Quintana  ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of
cases beginning with Abangan vs.
Abangan  ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque  ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de
Dios  ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and
Aguilar  ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if
possible, conciliate the last two decisions
cited by opposing counsel, namely, those
of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it
was decided that an attestation clause which
does not recite that the witnesses signed the
will and each and every page thereof on the
left margin in the presence of the testator is
defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was
cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal
and Aguilar, supra, wherein it was held that
the attestation clause must estate the fact
that the testator and the witnesses
reciprocally saw the signing of the will, for
such an act cannot be proved by the mere
exhibition of the will, if it is not stated
therein. It was also held that the fact that
the testator and the witnesses signed each
and every page of the will can be proved
also by the mere examination of the
signatures appearing on the document itself,
and the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or
distinguish previous cases; seldom do they
admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the
Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on
one, we affirm. If we rely on the other, we
reverse.
In resolving this puzzling question of
authority, three outstanding points may be
mentioned. In the first place, the Mojal,
decision was concurred in by only four
members of the court, less than a majority,
with two strong dissenting opinions; the
Quintana decision was concurred in by seven
members of the court, a clear majority, with
one formal dissent. In the second place, the
Mojal decision was promulgated in
December, 1924, while the Quintana
decision was promulgated in December,
1925; the Quintana decision was thus
subsequent in point of time. And in the third
place, the Quintana decision is believed
more nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is
governed entirely by statute. The law of the
case is here found in section 61 of the Code
of Civil Procedure as amended by Act No.
2645, and in section 634 of the same Code,
as unamended. It is in part provided in
section 61, as amended that
"No will . . .  shall be valid . . . unless  . . .."
It is further provided in the same section
that "The attestation shall state the number
of sheets or pages used, upon which the will
is written, and the fact that the testator
signed the will and every page thereof, or
caused some other person to write his
name, under his express direction, in the
presence of three witnesses, and the latter
witnessed and signed the will and all pages
thereof in the presence of the testator and
of each other." Codal section 634 provides
that "The will shall be disallowed in either of
the following case: 1. If not executed
and attested as in this Act provided." The
law not alone carefully makes use of the
imperative, but cautiously goes further and
makes use of the negative, to enforce
legislative intention. It is not within the
province of the courts to disregard the
legislative purpose so emphatically and
clearly expressed.
We adopt and reaffirm the decision in the
case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in
the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original
text).
But after the Gumban clarificatory
pronouncement, there were decisions of the
Court that once more appeared to revive the
seeming diversity of views that was earlier
threshed out therein. The cases of Quinto
vs. Morata,49 Rodriguez vs.
50
Alcala,  Enchevarria vs.
51
Sarmiento,  and Testate Estate of
Toray52 went the way of the ruling as
restated in Gumban. But De Gala vs.
Gonzales, et al.,53 Rey vs. Cartagena,54 De
Ticson vs. De Gorostiza,55 Sebastian vs.
Panganiban,56 Rodriguez vs. Yap,57 Grey vs.
Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs.
Pilapil, 63 and Lopez vs. Liboro,64 veered
away from the strict interpretation rule and
established a trend toward an application of
the liberal view.
The Code Commission, cognizant of such a
conflicting welter of views and of the
undeniable inclination towards a liberal
construction, recommended the codification
of the substantial compliance rule, as it
believed this rule to be in accord with the
modern tendency to give a liberal approach
to the interpretation of wills. Said rule thus
became what is now Article 809 of the Civil
Code, with this explanation of the Code
Commission:
The present law provides for only one form
of executing a will, and that is, in
accordance with the formalities prescribed
by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The
Supreme Court of the Philippines had
previously upheld the strict compliance with
the legal formalities and had even said that
the provisions of Section 618 of the Code of
Civil Procedure, as amended regarding the
contents of the attestation clause were
mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily
restrained the freedom of the testator in
disposing of his property.
However, in recent years the Supreme Court
changed its attitude and has become more
liberal in the interpretation of the formalities
in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs.
Yap, G.R. No. 45924, May 18, 1939; Leynez
vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995,
June 21, 1940; and Alcala vs. Villa, G.R. No.
47351, April 18, 1941.
In the above mentioned decisions of our
Supreme Court, it has practically gone back
to the original provisions of Section 618 of
the Code of Civil Procedure before its
amendment by Act No. 2645 in the year
1916. To turn this attitude into a legislative
declaration and to attain the main objective
of the proposed Code in the liberalization of
the manner of executing wills, article 829 of
the Project is recommended, which reads:
"Art. 829. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or in
the language used therein shall not render
the will invalid if it is proved that the will
was in fact executed and attested in
substantial compliance with all the
65
requirements of article 829."
The so-called liberal rule, the Court said
in Gil vs. Murciano,66 "does not offer any
puzzle or difficulty, nor does it open the door
to serious consequences. The later decisions
do tell us when and where to stop; they
draw the dividing line with precision. They
do not allow evidence aliunde to fill a void in
any part of the document or supply missing
details that should appear in the will itself.
They only permit a probe into the will, an
exploration into its confines, to ascertain its
meaning or to determine the existence or
absence of the requisite formalities of law.
This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of
dire results."
It may thus be stated that the rule, as it
now stands, is that omissions which can be
supplied by an examination of the will itself,
without the need of resorting to extrinsic
evidence, will not be fatal and,
correspondingly, would not obstruct the
allowance to probate of the will being
assailed. However, those omissions which
cannot be supplied except by
evidence aliunde would result in the
invalidation of the attestation clause and
ultimately, of the will itself.67
WHEREFORE, the petition is hereby
GRANTED and the impugned decision of
respondent court is hereby REVERSED and
SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of
Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the
Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with
the settlement of the estate of the said
decedent.
SO ORDERED.
G.R. No. 17430             May 31, 1922
In the matter of the estate of Geronima
Uy Coque, deceased.
ANDREA UY COQUE, ET AL., petitioners-
appellees,
vs.
JUAN NAVAS L. SIOCA, special
administrator of the estate of Geronima
Uy Coque, deceased, opponent-appellant.
Crossfiled & O'Brien for appellant.
Ruperto Kapunan for appellees.
OSTRAND, J.:
This is an appeal from an order of the Court
of First Instance of Samar, admitting a will
to probate.
The validity of the will is attacked on the
ground that the testatrix was mentally
incapacitated at the time of its execution
and on the further ground that it was not
executed on the form prescribed by section
618 of the Code of Civil Procedure as
amended by Act No. 2645,
The transcript of the testimony taken in the
probate proceedings not appearing in the
record, we cannot review the findings of the
court below as to the sanity of the testatrix.
This leaves for our consideration only the
question as to whether the omission of
certain formalities in the execution of the
will are fatal to its validity.
Section 618 of the Code of Civil Procedure
as amended by Act No. 2645 reads:
No will, except as provided in the preceding
section, shall be valid to pass any estate,
real or personal, nor charge or affect the
same, unless it be written in the language or
dialect known by the testator and signed by
him, or by the testator's name written by
some other person in his presence, and by
his express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each other. The testator or the
person requested by him to write his name
and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every
page thereof, on the left margin, and said
pages shall be numbered correlatively in
letters placed on the upper part of each
sheet. The attestation shall state the
number of sheets or pages used, upon which
the will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express direction,
in the presence of three witnesses, and the
latter witnessed and signed the will and all
pages thereof in the presence of the testator
and of each other.
The formal deffects of the will in question
occur in its attestation clause which, in
translation, read as follows:
We, the undersigned witnesses of this will,
state that it has been shown to us by the
testatrix as her last will and testament. And
as she cannot sign her name, she asked that
Mr. Filomeno Piczon sign her name in the
presence of each of us, and each of us, the
witnesses, also signed in the presence of the
testatrix.
It will be noted that the attestation clause
does not state the number of pages
contained in the will nor does it state that
the witnesses signed in the presence of each
other. Neither do these facts appear in any
other part of the will.
Statutes prescribing the formalities to be
observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at
page 1097, "A will must be executed in
accordance with the statutory requirements;
otherwise it is entirely void. All these
requirements stand as of equal importance
and must be observed, and courts cannot
supply the defective execution of a will. No
power or discretion is vested in them, either
to superadd other conditions or dispose with
those enumerated in the statutes."
This court has also frequently held that a will
should not be probated unless in its
execution there has been a strict complaince
with all the requisites prescribed in section
618 of the Code of Civil Produre. It is true
that in the case of Abangan vs. Abangan  (40
Phil., 476) the court upheld the validity of a
will consisting of only two pages, the first
containing all the testamentary dispositions
and being signed by the testator at the
bottom and by both the testator and the
witnesses in the margin, the second page
containing only the attestaiton clause with
the signatures of the witnesses at the
bottom but without marginal signatures. The
decision was based on the ground that it
could not have been the intention of the
legislator to require, as an essential to the
validity of the will, that all the signatures
appear twice on the same page as such a
requirement would be entirely purposeless.
This decision is no doubt sound; that in
statutory construction the evident intent  of
the legislator controls will probably not be
disputed.
But it must not be forgotten that in
construing statutory provisions in regard to
the formal requisites of a will, we are
seeking to ascertain the intent, of the
legislator and not that the testator; the
latter's intention is frequently defeated
through non-observance of the statue.
The purpose of the Legislature in prescribing
the rather strict formalities now required in
the execution of a will are clearly revealed
by comparing section 618, supra, as
originally enacted with the amended section
quoted above. The original section reads:
No will, except as provided in the preceding
section, shall be valid to pass any estate,
real or personal, nor charge or affect the
same, unless it be in writing and signed by
the testator, or by the testator's name
written by some other person in his
presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of each other. The attestation
shall state the fact that the testator signed
the will, or caused it to be signed by some
other person, at this express direction, in
the presence of three witnesses, and that
they attested and subscribed it is his
presence and in the presence of each other.
But the absence of such form of attestation
shall not render the will in valid if it is
proven that the will was in fact signed and
attested as in this section provided.
The amendments or changes introduced by
Act No. 2645 are (a) that the will must now
be executed in a language or dialect known
to the testator; (b) that the testator and
witnesses must sign each page on the left
margin; (c) that the pages be numbered
correclatively; (d) that the attestation clause
shall state the number sheets or page used
in the will and (e) that it must appear from
the attestation clause itself that the testator
and witnesses signed in the form and
manner required by law and that is this can
no longer be proven by evidence aliunde.
The changes mentioned under (d) and (e)
are the only ones which need be considered
in the present case. The purpose of requiring
the number of sheets to be stated in the
attestation clause is obvious; the document
might easily be so prepared that the
removal of a sheet would completely change
the testamentary dispositions of the will and
in the absence of a statement of the total
number of sheets such removal might be
effected by taking out the sheet and
changing the numbers at the top of the
following sheets or pages. If, on the other
hand, the total number of sheets is stated in
the attestation clause the falsification of the
document will involve the inserting of new
pages and the forgoing of the signatures of
the testator and witnesses in the margin, a
matter attended with much greater
difficulty.
The purpose of the new requirement that it
must appear in the attestation clause that
the testator and the witnesses signed in the
presence of each other and that the fact
cannot be proved by evidence aliunde  is,
perhaps, less obvious, but, in view of the
well-known unreliability of oral evidence, it
is clear that a statement in the attestation
clause will afford more satisfatory evidence
of the fact to be proven. In any event, the
fact that the old rule in regard to
admissibility or oral evidence to prove that
the testator and witnesses signed in the
manner prescribed by the law evidently had
been found unsatisfactory and was
deliberately varied by amendment shows
that the Legislature attached importance to
the mater. If so, the courts will not be
justified in enervating the amendment by
too liberal a construction.
We therefore hold that the two defects noted
in the attestation clause of the alleged will
renders it null and void and that it cannot be
admitted to probate. The order appealed
from is reversed with the costs against the
appellee. So ordered.
G.R. No. 189984               November 12,
2012
IN THE MATTER OF THE PETITION FOR
THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE
LEON and VICTORIA L.
TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails
the March 30, 2009 Decision 1 and October
22, 2009 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CV No. 87064 which
affirmed the August 26, 2005 Decision3 of
the Regional Trial Court of Manila, Branch 42
(RTC), in SP. Proc. No. 99-95225 disallowing
the probate of the Last Will and Testament
of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez
(Enrique) died leaving his wife, Wendy B.
Lopez, and their four legitimate children,
namely, petitioner Richard B. Lopez
(Richard) and the respondents Diana Jeanne
Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria)
as compulsory heirs. Before Enrique’s death,
he executed a Last Will and Testament4 on
August 10, 1996 and constituted Richard as
his executor and administrator.
On September 27, 1999, Richard filed a
petition for the probate of his father's Last
Will and Testament before the RTC of Manila
with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed
the petition contending that the purported
last will and testament was not executed
and attested as required by law, and that it
was procured by undue and improper
pressure and influence on the part of
Richard. The said opposition was also
adopted by Victoria.
After submitting proofs of compliance with
jurisdictional requirements, Richard
presented the attesting witnesses, namely:
Reynaldo Maneja; Romulo Monteiro; Ana
Maria Lourdes Manalo (Manalo); and the
notary public who notarized the will, Atty.
Perfecto Nolasco (Atty. Nolasco). The
instrumental witnesses testified that after
the late Enrique read and signed the will on
each and every page, they also read and
signed the same in the latter's presence and
of one another. Photographs of the incident
were taken and presented during trial.
Manalo further testified that she was the one
who prepared the drafts and revisions from
Enrique before the final copy of the will was
made.
Likewise, Atty. Nolasco claimed that Enrique
had been his client for more than 20 years.
Prior to August 10, 1996, the latter
consulted him in the preparation of the
subject will and furnished him the list of his
properties for distribution among his
children. He prepared the will in accordance
with Enrique's instruction and that before
the latter and the attesting witnesses signed
it in the presence of one another, he
translated the will which was written in
English to Filipino and added that Enrique
was in good health and of sound mind at
that time.
On the other hand, the oppositors presented
its lone witness, Gregorio B. Paraon
(Paraon), Officer-in-Charge of the Notarial
Section, Office of the Clerk of Court, RTC,
Manila. His testimony centered mainly on
their findings that Atty. Nolasco was not a
notary public for the City of Manila in 1996,
which on cross examination was clarified
after Paraon discovered that Atty. Nolasco
was commissioned as such for the years
1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the
RTC disallowed the probate of the will for
failure to comply with Article 805 of the Civil
Code which requires a statement in the
attestation clause of the number of pages
used upon which the will is written. It held
that while Article 809 of the same Code
requires mere substantial compliance of the
form laid down in Article 805 thereof, the
rule only applies if the number of pages is
reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence
required. While the acknowledgment portion
stated that the will consists of 7 pages
including the page on which the ratification
and acknowledgment are written, the RTC
observed that it has 8 pages including the
acknowledgment portion. As such, it
disallowed the will for not having been
executed and attested in accordance with
law.
Aggrieved, Richard filed a Notice of Appeal
which the RTC granted in the Order dated
October 26, 2005.6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the
assailed decision dismissing the appeal. It
held that the RTC erroneously granted
Richard's appeal as the Rules of Court is
explicit that appeals in special proceedings,
as in this case, must be made through a
record on appeal. Nevertheless, even on the
merits, the CA found no valid reason to
deviate from the findings of the RTC that the
failure to state the number of pages of the
will in the attestation clause was fatal. It
noted that while Article 809 of the Civil Code
sanctions mere substantial compliance with
the formal requirements set forth in Article
805 thereof, there was a total omission of
such fact in the attestation clause.
Moreover, while the acknowledgment of the
will made mention of "7 pages including the
page on which the ratification and
acknowledgment are written," the will had
actually 8 pages including the
acknowledgment portion thus, necessitating
the presentation of evidence aliunde to
explain the discrepancy. Richard's motion for
reconsideration from the decision was
likewise denied in the second assailed
Resolution8 dated October 22, 2009.
Hence, the instant petition assailing the
propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of
Wills, particularly, Articles 805 and 809 of
the Civil Code provide:
ART. 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him
to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof,
except the last, on the left margin, and all
the pages shall be numbered correlatively in
letters placed on the upper part of each
page.
The attestation shall state the number of
pages used upon which the will is written,
and the fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under his
express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the testator numbered; whether the signatures appear in
and of one another. each and every page; whether the
If the attestation clause is in a language not subscribing witnesses are three or the will
known to the witnesses, it shall be was notarized. All these are facts that the
interpreted to them.1âwphi1 (underscoring will itself can reveal, and defects or even
supplied) omissions concerning them in the attestation
ART. 809. In the absence of bad faith, clause can be safely disregarded. But the
forgery, or fraud, or undue and improper total number of pages, and whether all
pressure and influence, defects and persons required to sign did so in the
imperfections in the form of attestation or in presence of each other must substantially
the language used therein shall not render appear in the attestation clause, being the
the will invalid if it is proved that the will only check against perjury in the probate
was in fact executed and attested in proceedings.12 (Emphasis supplied)
substantial compliance with all the Hence, the CA properly sustained the
requirements of Article 805. disallowance of the will. Moreover, it
The law is clear that the attestation must correctly ruled that Richard pursued the
state the number of pages used upon which wrong mode of appeal as Section 2(a), Rule
the will is written. The purpose of the law is 41 of the Rules of Court explicitly provides
to safeguard against possible interpolation that in special proceedings, as in this case,
or omission of one or some of its pages and the appeal shall be made by record on
prevent any increase or decrease in the appeal.
pages.9 WHEREFORE, premises considered, the
While Article 809 allows substantial petition is DENIED.
compliance for defects in the form of the SO ORDERED.
attestation clause, Richard likewise failed in
this respect. The statement in the
Acknowledgment portion of the subject last
will and testament that it "consists of 7
pages including the page on which the
ratification and acknowledgment are
written"10 cannot be deemed substantial
compliance. The will actually consists of 8
pages including its acknowledgment which
discrepancy cannot be explained by mere
examination of the will itself but through the
presentation of evidence aliund.11 On this
score is the comment of Justice J.B.L. Reyes
regarding the application of Article 809, to
wit:
x x x The rule must be limited to
disregarding those defects that can be
supplied by an examination of the will itself:
whether all the pages are consecutively
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE
ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates
for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside
the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First
Instance of Manila, Branch XXI disallowing
the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing
of this petition are undisputed.
After the death of spouses Andres G. de
Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter
of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of
the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R.
Roxas was appointed administrator. After
Letters of Administration had been granted
to the petitioner, he delivered to the lower
court a document purporting to be the
holographic Will of the deceased Bibiana
Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the
hearing of the probate of the holographic
Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that
after his appointment as administrator, he
found a notebook belonging to the deceased
Bibiana R. de Jesus and that on pages 21,
22, 23 and 24 thereof, a letter-win
addressed to her children and entirely
written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found.
The will is dated "FEB./61 " and states: "This
is my win which I want to be respected
although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was
corroborated by the testimonies of Pedro
Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their
deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother
and positively Identified her signature. They
further testified that their deceased mother
understood English, the language in which
the holographic Will is written, and that the
date "FEB./61 " was the date when said Will
was executed by their mother.
Respondent Luz R. Henson, another
compulsory heir filed an "opposition to
probate" assailing the purported holographic
Will of Bibiana R. de Jesus because a it was
not executed in accordance with law, (b) it
was executed through force, intimidation
and/or under duress, undue influence and
improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not
intend, nor could have intended the said Will
to be her last Will and testament at the time
of its execution.
On August 24, 1973, respondent Judge Jose
C. Colayco issued an order allowing the
probate of the holographic Will which he
found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a
motion for reconsideration alleging inter alia
that the alleged holographic Will of the
deceased Bibiana R. de Jesus was not dated
as required by Article 810 of the Civil Code.
She contends that the law requires that the
Will should contain the day, month and year
of its execution and that this should be
strictly complied with.
On December 10, 1973, respondent Judge
Colayco reconsidered his earlier order and
disallowed the probate of the holographic
Will on the ground that the word "dated" has
generally been held to include the month,
day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting to be
the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having
been executed as required by the law. The
order of August 24, 1973 is hereby set
aside.
The only issue is whether or not the date
"FEB./61 " appearing on the holographic Will
of the deceased Bibiana Roxas de Jesus is a
valid compliance with the Article 810 of the
Civil Code which reads:
ART. 810. A person may execute a
holographic will which must be entirely
written, dated, and signed by the hand of
the testator himself. It is subject to no other
form, and may be made in or out of the
Philippines, and need not be witnessed.
The petitioners contend that while Article
685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the
testator to state in his holographic Win the
"year, month, and day of its execution," the
present Civil Code omitted the phrase Año
mes y dia and simply requires that the
holographic Will should be dated. The
petitioners submit that the liberal
construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand
submits that the purported holographic Will
is void for non-compliance with Article 810
of the New Civil Code in that the date must
contain the year, month, and day of its
execution. The respondent contends that
Article 810 of the Civil Code was patterned
after Section 1277 of the California Code
and Section 1588 of the Louisiana Code
whose Supreme Courts had consistently
ruled that the required date includes the
year, month, and day, and that if any of
these is wanting, the holographic Will is
invalid. The respondent further contends
that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code
because statutes prescribing the formalities
to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court
departs from a strict and literal application
of the statutory requirements regarding the
due execution of Wills. We should not
overlook the liberal trend of the Civil Code in
the manner of execution of Wills, the
purpose of which, in case of doubt is to
prevent intestacy —
The underlying and fundamental objectives
permeating the provisions of the law on wigs
in this Project consists in the liberalization of
the manner of their execution with the end
in view of giving the testator more freedom
in expressing his last wishes, but with
sufficien safeguards and restrictions to
prevent the commission of fraud and the
exercise of undue and improper pressure
and influence upon the testator.
This objective is in accord with the modem
tendency with respect to the formalities in
the execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in
Heirs of Raymundo Castro v. Bustos  (27
SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of
the testator expressed in his last will and
testament on the ground that any
disposition made by the testator is better
than that which the law can make. For this
reason, intestate succession is nothing more
than a disposition based upon the presumed
will of the decedent.
Thus, the prevailing policy is to require
satisfaction of the legal requirements in
order to guard against fraud and bad faith
but without undue or unnecessary
curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA
422). If a Will has been executed in
substantial compliance with the formalities
of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated,
said Win should be admitted to probate (Rey
v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and
circumstances of record are to be considered
in the application of any given rule. If the
surrounding circumstances point to a regular
execution of the wilt and the instrument
appears to have been executed substantially
in accordance with the requirements of the
law, the inclination should, in the absence of
any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate,
although the document may suffer from
some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez
68 Phil. 745).
If the testator, in executing his Will,
attempts to comply with all the requisites,
although compliance is not literal, it is
sufficient if the objective or purpose sought
to be accomplished by such requisite is
actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding
the execution of Wills has been expounded
by this Court in Abangan v. Abanga 40 Phil.
476, where we ruled that:
The object of the solemnities surrounding
the execution of wills is to close the door
against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity. ...
In particular, a complete date is required to
provide against such contingencies as that of
two competing Wills executed on the same
day, or of a testator becoming insane on the
day on which a Will was executed (Velasco
v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of
this case and found no evidence of bad faith
and fraud in its execution nor was there any
substitution of Wins and Testaments. There
is no question that the holographic Will of
the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the
testatrix herself and in a language known to
her. There is also no question as to its
genuineness and due execution. All the
children of the testatrix agree on the
genuineness of the holographic Will of their
mother and that she had the testamentary
capacity at the time of the execution of said
Will. The objection interposed by the
oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because
the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a
holographic Will should include the day,
month, and year of its execution. However,
when as in the case at bar, there is no
appearance of fraud, bad faith, undue
influence and pressure and the authenticity
of the Will is established and the only issue
is whether or not the date "FEB./61"
appearing on the holographic Will is a valid
compliance with Article 810 of the Civil
Code, probate of the holographic Will should
be allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is
GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus is
reinstated.
SO ORDERED.
G.R. Nos. 83843-44               April 5,
1990
IN THE MATTER OF THE PETITION TO
APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR
(Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and
CRISTOBAL LABRADOR, petitioners-
appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO
LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for
petitioners.
Rodrigo V. Fontelera for private
respondents.
PARAS, J.:
The sole issue in this case is whether or not
the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article
8102 of the New Civil Code.
The antecedent and relevant facts are as
follows: On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of
Zambales, where he was residing, leaving
behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title
No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus,
Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now
deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed
in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of
the alleged holographic will of the late
Melecio Labrador.
Subsequently, on September 30, 1975,
Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio
Labrador filed an opposition to the petition
on the ground that the will has been
extinguished or revoked by implication of
law, alleging therein that on September 30,
1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000)
Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a
matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier
however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five
Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28,
1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported
Deed of Absolute Sale over a parcel of land
which Sagrado allegedly had already
acquired by devise from their father Melecio
Labrador under a holographic will executed
on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I,
being premised on the fact that the
aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted
their respective evidence, the trial court
rendered a joint decision dated February 28,
1985, allowing the probate of the
holographic will and declaring null and void
the Deed of Absolute sale. The court a
quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of
P5,000.00 representing the redemption price
for the property paid by the plaintiff-
petitioner Sagrado with legal interest
thereon from December 20, 1976, when it
was paid to vendee a retro.
Respondents appealed the joint decision to
the Court of Appeals, which on March 10,
1988 modified said joint decision of the
court a quo by denying the allowance of the
probate of the will for being undated and
reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court
of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors
committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT
ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING
THAT THE ORDER OF THE LOWER COURT
DIRECTING THE REIMBURSEMENT OF THE
FIVE THOUSAND PESOS REPRESENTING
THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written
in Ilocano translated into English, is quoted
as follows:
ENGLISH INTERPRETATION OF THE WILL OF
THE
LATE MELECIO LABRADOR WRITTEN IN
ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the
place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR
which is the fishpond located and known
place as Tagale.
And this place that is given as the share to
him, there is a measurement of more or less
one hectare, and the boundary at the South
is the property and assignment share of
ENRICA LABRADOR, also their sister, and
the boundary in the West is the sea, known
as the SEA as it is, and the boundary on the
NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also
their brother. That because it is now the
time for me being now ninety three (93)
years, then I feel it is the right time for me
to partition the fishponds which were and
had been bought or acquired by us, meaning
with their two mothers, hence there shall be
no differences among themselves, those
among brothers and sisters, for it is I myself
their father who am making the
apportionment and delivering to each and
everyone of them the said portion and
assignment so that there shall not be any
cause of troubles or differences among the
brothers and sisters.
II — Second Page
And this is the day in which we agreed that
we are making the partitioning and
assigning the respective assignment of the
said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this
decision and or instruction of mine is the
matter to be followed. And the one who
made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am
making in writing and it is this that should
be followed and complied with in order that
any differences or troubles may be
forestalled and nothing will happen along
these troubles among my children, and that
they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the
land; mangoes, bamboos and all coconut
trees and all others like the other kind of
bamboo by name of Bayog, it is their right
to get if they so need, in order that there
shall be nothing that anyone of them shall
complain against the other, and against
anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of
property, where the said property is located,
the same being the fruits of our earnings of
the two mothers of my children, there shall
be equal portion of each share among
themselves, and or to be benefitted with all
those property, which property we have
been able to acquire.
That in order that there shall be basis of the
truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the
fruits of our labor which their two mothers, I
am signing my signature below hereof, and
that this is what should be complied with, by
all the brothers and sisters, the children of
their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this
writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that
the holographic will is really dated, although
the date is not in its usual place, is
impressed with merit.
The will has been dated in the hand of the
testator himself in perfect compliance with
Article 810.1âwphi1 It is worthy of note to
quote the first paragraph of the second page
of the holographic will, viz:
And this is the day in which we agreed that
we are making the partitioning and
assigning the respective assignment of the
said fishpond, and this being in the month
of March, 17th day, in the year 1968, and
this decision and or instruction of mine is
the matter to be followed. And the one who
made this writing is no other than MELECIO
LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular
location where the date should be placed in
the will. The only requirements are that the
date be in the will itself and executed in the
hand of the testator. These requirements
are present in the subject will.
Respondents claim that the date 17 March
1968 in the will was when the testator and
his beneficiaries entered into an agreement
among themselves about "the partitioning
and assigning the respective assignments of
the said fishpond," and was not the date of
execution of the holographic will; hence, the
will is more of an "agreement" between the
testator and the beneficiaries thereof to the
prejudice of other compulsory heirs like the
respondents. This was thus a failure to
comply with Article 783 which defines a will
as "an act whereby a person is permitted,
with the formalities prescribed by law, to
control to a certain degree the disposition of
his estate, to take effect after his death."
Respondents are in error. The intention to
show 17 March 1968 as the date of the
execution of the will is plain from the tenor
of the succeeding words of the paragraph.
As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was
executing was a will. The act of partitioning
and the declaration that such partitioning as
the testator's instruction or decision to be
followed reveal that Melecio Labrador was
fully aware of the nature of the estate
property to be disposed of and of the
character of the testamentary act as a
means to control the disposition of his
estate.
Anent the second issue of finding the
reimbursement of the P5,000 representing
the redemption price as erroneous,
respondent court's conclusion is incorrect.
When private respondents sold the property
(fishpond) with right to repurchase to Navat
for P5,000, they were actually selling
property belonging to another and which
they had no authority to sell, rendering such
sale null and void. Petitioners, thus
"redeemed" the property from Navat for
P5,000, to immediately regain possession of
the property for its disposition in accordance
with the will. Petitioners therefore deserve
to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the
Court of Appeals dated March 10, 1988 is
hereby REVERSED. The holographic will of
Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents
are directed to REIMBURSE the petitioners
the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA petitioner,
vs.
INTERMEDIATE APPELLATE COURT and
ADELAIDO J. RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
CRUZ, J.:
Was there only one Venancio Rivera in
Mabalacat, Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy
resident of that town named Venancio
Rivera died. On July 28, 1975, Jose Rivera,
claiming to be the only surviving legitimate
son of the deceased, filed a petition for the
issuance of letters of administration over
Venancio's estate. Docketed as SP No. 1076,
this petition was opposed by Adelaido J.
Rivera, who denied that Jose was the son of
the decedent. Adelaido averred that
Venancio was his father and did not die
intestate but in fact left two holographic
wills.1
On November 7, 1975, Adelaido J. Rivera
filed, also with the Regional Trial Court of
Angeles City, a petition for the probate of
the holographic wills. Docketed as SP No.
1091, this petition was in turn opposed by
Jose Rivera, who reiterated that he was the
sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were
consolidated. Adelaido J. Rivera was later
appointed special administrator. After joint
trial, Judge Eliodoro B. Guinto found that
Jose Rivera was not the son of the decedent
but of a different Venancio Rivera who was
married to Maria Vital. The Venancio Rivera
whose estate was in question was married to
Maria Jocson, by whom he had seven
children, including Adelaido. Jose Rivera had
no claim to this estate because the decedent
was not his father. The holographic wills
were also admitted to probate. 3
On appeal, the decision of the trial court was
affirmed by the then Intermediate Appellate
Court. 4 Its decision is now the subject of
this petition, which urges the reversal of the
respondent court.
In support of his claim that he was the sole
heir of the late Venancio Rivera, Jose sought
to show that the said person was married in
1928 to Maria Vital, who was his mother. He
submitted for this purpose Exhibit A, the
marriage certificate of the couple, and
Exhibit B, his own baptismal certificate
where the couple was indicated as his
parents. The petitioner also presented
Domingo Santos, who testified that Jose was
indeed the son of the couple and that he
saw Venancio and Jose together several
times. 5 Jose himself stressed that Adelaido
considered him a half-brother and kissed his
hand as a sign of respect whenever they
met. He insisted that Adelaido and his
brothers and sisters were illegitimate
children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he
and his brothers and sisters were born to
Venancio Rivera and Maria Jocson, who were
legally married and lived as such for many
years. He explained that he could not
present his parents' marriage certificate
because the record of marriages for 1942 in
Mabalacat were destroyed when the town
was burned during the war, as certified by
Exhibit 6. 7 He also submitted his own birth
certificate and those of his sisters Zenaida
and Yolanda Rivera, who were each
described therein as the legimitate children
of Venancio Rivera and Maria Jocson. 8 Atty.
Regalado P. Morales, then 71 years of age,
affirmed that he knew the deceased and his
parents, Magno Rivera and Gertrudes de los
Reyes, and it was during the Japanese
occupation that Venancio introduced to him
Maria Jocson as his wife. 9 To prove that
there were in fact two persons by the same
name of Venancio Rivera, Adelaido offered
Venancio Rivera's baptismal certificate
showing that his parents were Magno Rivera
and Gertrudes de los Reyes, 10 as contrasted
with the marriage certificate submitted by
Jose, which indicated that the Venancio
Rivera subject thereof was the son of
Florencio Rivera and Estrudez Reyes. 11 He
also denied kissing Jose's hand or
recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his
parents' marriage certificate because, as he
explained it, the marriage records for 1942
in the Mabalacat civil registry were burned
during the war. Even so, he could still rely
on the presumption of marriage, since it is
not denied that Venancio Rivera and Maria
Jocson lived together as husband and wife
for many years, begetting seven children in
all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the
solidarity of the family. Thus every
intendment of the law or fact leans toward
the validity of marriage, the indissolubility of
the marriage bonds, the legitimacy of
children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions.  — The
following presumptions are satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage.
By contrast, although Jose did present his
parents' marriage certificate, Venancio was
described therein as the son of Florencio
Rivera. Presumably, he was not the same
Venancio Rivera described in Exhibit 4, his
baptismal certificate, as the son of Magno
Rivera. While we realize that such baptismal
certificate is not conclusive evidence of
Venancio's filiation (which is not the issue
here) it may nonetheless be considered to
determine his real identity. Jose insists that
Magno and Florencio are one and the same
person, arguing that it is not uncommon for
a person to be called by different names.
The Court is not convinced. There is no
evidence that Venancio's father was called
either Magno or Florencio. What is more
likely is that two or more persons may live
at the same time and bear the same name,
even in the same community. That is what
the courts below found in the cases at bar.
What this Court considers particularly
intriguing is why, if it is true that he was the
legitimate son of Venancio Rivera, Jose did
not assert his right as such when his father
was still alive. By his own account, Jose
supported himself — and presumably also
his mother Maria Vital — as a gasoline
attendant and driver for many years. All the
time, his father was residing in the same
town — and obviously prospering — and
available for support. His alleged father was
openly living with another woman and
raising another family, but this was
apparently accepted by Jose without protest,
taking no step whatsoever to invoke his
status. If, as he insists, he and Venancio
Rivera were on cordial terms, there is no
reason why the father did not help the son
and instead left Jose to fend for himself as a
humble worker while his other children by
Maria Jocson enjoyed a comfortable life.
Such paternal discrimination is difficult to
understand, especially if it is considered —
assuming the claims to be true — that Jose
was the oldest and, by his own account, the
only legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude
is no less incomprehensible. As Venancio's
legitimate wife — if indeed she was — she
should have objected when her husband
abandoned her and founded another family
by another woman, and in the same town at
that. Seeing that the children of Maria
Jocson were being raised well while her own
son Jose was practically ignored and
neglected, she nevertheless did not demand
for him at least support, if not better
treatment, from his legitimate father. It is
unnatural for a lawful wife to say nothing if
she is deserted in favor of another woman
and for a caring mother not to protect her
son's interests from his wayward father's
neglect. The fact is that this forsaken wife
never demanded support from her wealthy if
errant husband. She did not file a complaint
for bigamy or concubinage against Venancio
Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was
completely passive and complaisant.
Significantly, as noted by the respondent
court, Maria Vital was not even presented at
the trial to support her son's allegations that
she was the decedent's lawful wife. Jose
says this was not done because she was
already old and bedridden then. But there
was no impediment to the taking of her
deposition in her own house. No effort was
made toward this end although her
testimony was vital to the petitioner's cause.
Jose dismisses such testimony as merely
"cumulative," but this Court does not agree.
Having alleged that Maria Jocson's marriage
to Venancio Rivera was null and void, Jose
had the burden of proving that serious
allegation.
We find from the evidence of record that the
respondent court did not err in holding that
the Venancio Rivera who married Maria
Jocson in 1942 was not the same person
who married Maria Vital, Jose's legitimate
mother, in 1928. Jose belonged to a
humbler family which had no relation
whatsoever with the family of Venancio
Rivera and Maria Vital. This was more
prosperous and prominent. Except for the
curious Identity of names of the head of
each, there is no evidence linking the two
families or showing that the deceased
Venancio Rivera was the head of both.
Now for the holographic wills. The
respondent court considered them valid
because it found them to have been written,
dated and signed by the testator himself in
accordance with Article 810 of the Civil
Code. It also held there was no necessity of
presenting the three witnesses required
under Article 811 because the authenticity of
the wills had not been questioned.
The existence and therefore also the
authenticity of the holographic wills were
questioned by Jose Rivera. In his own
petition in SP No. 1076, he declared that
Venancio Rivera died intestate; and in SP
No. 1091, he denied the existence of the
holographic wills presented by Adelaido
Rivera for probate. In both proceedings,
Jose Rivera opposed the holographic wills
submitted by Adelaido Rivera and claimed
that they were spurious. Consequently, it
may be argued, the respondent court should
have applied Article 811 of the Civil Code,
providing as follows:
In the probate of a holographic will, it shall
be necessary that at least one witness who
knows the handwriting and signature of the
testator explicitly declare that the will and
the signature are in the handwriting of the
testator. If the will is contested, at least
three of such witnesses shall be required.
The flaw in this argument is that, as we
have already determined, Jose Rivera is not
the son of the deceased Venancio Rivera
whose estate is in question. Hence, being a
mere stranger, he had no personality to
contest the wills and his opposition thereto
did not have the legal effect of requiring the
three witnesses. The testimony of Zenaida
and Venancio Rivera, Jr., who authenticated
the wills as having been written and signed
by their father, was sufficient.
WHEREFORE, the petition is DENIED and the
challenged decision is AFFIRMED, with costs
against the petitioner.
SO ORDERED.
G.R. No. L-14003             August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for
appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a
decision rendered on 15 January 1958 by
the Court of First Instance of Quezon City in
its Special Proceedings No. Q-2640, involves
the determination of the quantity of
evidence required for the probate of a
holographic will.
The established facts are thus summarized
in the decision appealed from (Rec. App. pp.
22-24):
"Briefly speaking, the following facts were
established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City,
known to be the last residence of said
testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will,
submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made
the sole heir as against the nephew of
deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the
holographic will (Exh. C) one month, more
or less, before the death of the testatrix, as
the same was handed to him and his wife;
that the witness testified also that he
recognized all the signatures appearing in
the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce
said statement, witness presented the
mortgage (Exh. E), the special power of the
attorney (Exh. F), and the general power of
attorney (Exh. F-1), besides the deeds of
sale (Exhs. G and G-1) including an affidavit
(Exh. G-2), and that there were further
exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of
the testatrix, for comparison purposes; that
said witness, Azaola, testified that the
penmanship appearing in the aforesaid
documentary evidence is in the handwriting
of the testatrix as well as the signatures
appearing in the aforesaid documentary
evidence is in the handwriting of the
testatrix as well as the signatures appearing
therein are the signatures of the testatrix;
that said witness, in answer to a question of
his counsel admitted that the holographic
will was handed to him by the testatrix.
"apparently it must have been written by
her" (t.s.n., p. 11). However, on page 16 on
the same transcript of the stenographic
notes, when the same witness was asked by
counsel if he was familiar with the
penmanship and handwriting of the
deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and
when he was asked again whether the
penmanship referred to in the previous
answer as appearing in the holographic will
(Exh. C) was hers (testatrix'), he answered,
"I would definitely say it is hers"; that it was
also established in the proceedings that the
assessed value of the property of the
deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the
ground that (1) the execution of the will was
procured by undue and improper pressure
and influence on the part of the petitioner
and his wife, and (2) that the testatrix did
not seriously intend the instrument to be her
last will, and that the same was actually
written either on the 5th or 6th day of
August 1957 and not on November 20, 1956
as appears on the will.
The probate was denied on the ground that
under Article 811 of the Civil Code, the
proponent must present three witnesses
who could declare that the will and the
signature are in the writing of the testatrix,
the probate being contested; and because
the lone witness presented by the proponent
"did not prove sufficiently that the body of
the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that
he was not bound to produce more than one
witness because the will's authenticity was
not questioned; and second, that Article 811
does not mandatorily require the production
of three witnesses to identify the
handwriting and signature of a holographic
will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the
Philippines is to the following effect:
ART. 811. In the probate of a holographic
will, it shall be necessary that at least one
witness who knows the handwriting and
signature of the testator explicitly declare
that the will and the signature are in the
handwriting of the testator. If the will is
contested, at least three of such witnesses
shall be required.
In the absence of any competent witnesses
referred to in the preceding paragraph, and
if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the
authenticity of the will was not contested, he
was not required to produce more than one
witness; but even if the genuineness of the
holographic will were contested, we are of
the opinion that Article 811 of our present
Civil Code can not be interpreted as to
require the compulsory presentation of three
witnesses to identify the handwriting of the
testator, under penalty of having the
probate denied. Since no witness may have
been present at the execution of a
holographic will, none being required by law
(Art. 810, new Civil Code), it becomes
obvious that the existence of witness
possessing the requisite qualifications is a
matter beyond the control of the proponent.
For it is not merely a question of finding and
producing any three witnesses; they must
be witnesses "who know the handwriting
and signature of the testator" and who can
declare (truthfully, of course, even if the law
does not so express) "that the will and the
signature are in the handwriting of the
testator". There may be no available witness
of the testator's hand; or even if so
familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with
the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is
evidently the reason why the second
paragraph of Article 811 prescribes that —
in the absence of any competent witness
referred to in the preceding paragraph, and
if the court deems it necessary, expert
testimony may be resorted to.
As can be seen, the law foresees the
possibility that no qualified witness may be
found (or what amounts to the same thing,
that no competent witness may be willing to
testify to the authenticity of the will), and
provides for resort to expert evidence to
supply the deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented
if the will is contested and only one if no
contest is had) was derived from the rule
established for ordinary testaments (cf.
Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). But it
can not be ignored that the requirement can
be considered mandatory only in the case of
ordinary testaments, precisely because the
presence of at least three witnesses at the
execution of ordinary wills is made by law
essential to their validity (Art. 805). Where
the will is holographic, no witness need be
present (Art. 10), and the rule requiring
production of three witnesses must be
deemed merely permissive if absurd results
are to be avoided.
Again, under Article 811, the resort to
expert evidence is conditioned by the words
"if the Court deem it necessary", which
reveal that what the law deems essential is
that the Court should be convinced of the
will's authenticity. Where the prescribed
number of witnesses is produced and the
court is convinced by their testimony that
the ill is genuine, it may consider it
unnecessary to call for expert evidence. On
the other hand, if no competent witness is
available, or none of those produced is
convincing, the Court may still, and in fact it
should, resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as
much interested as the proponent that the
true intention of the testator be carried into
effect.
Commenting on analogous provisions of
Article 691 of the Spanish Civil Code of
1889, the noted Commentator, Mucuis
Scaevola (Vol. 12, 2nd Ed., p.421), sagely
remarks:
La manera como esta concebida la redaccion
del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo
menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que
le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten
insertas en los autos del expediente las
declaraciones testificales. La prudencia con
que el Juez debe de proceder en
resoluciones de transcendencia asi lo exige,
y la indole delicada y peligrosa del
testamento olografo lo hace necesario para
mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede
ser una confirmacion facultativa del dicho
profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que
trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado,
(siempre que el Juez lo estime conveniente),
haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son
preguntados.
El arbitrio judicial en este caso debe
formarse con independencia de los sucesos y
de su significacion, para responder
debidamente de las resoluciones que haya
de dictar.
And because the law leaves it to the trial
court if experts are still needed, no
unfavourable inference can be drawn from a
party's failure to offer expert evidence, until
and unless the court expresses
dissatisfaction with the testimony of the lay
witnesses.
Our conclusion is that the rule of the first
paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Considering, however, that this is the first
occasion in which this Court has been called
upon to construe the import of said article,
the interest of justice would be better
served, in our opinion, by giving the parties
ample opportunity to adduce additional
evidence, including expert witnesses, should
the Court deem them necessary.
In view of the foregoing, the decision
appealed from is set aside, and the records
ordered remanded to the Court of origin,
with instructions to hold a new trial in
conformity with this opinion. But evidence
already on record shall not be retaken. No
costs.
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and
MANUEL
RAMONAL, petitioners, vs. EVANGELINE
R. CALUGAY, JOSEPHINE SALCEDO, and
EUFEMIA PATIGAS, Respondents.
DECISION
PARDO, J.:
Before us is a petition for review
on certiorari of the decision of the Court of
Appeals1 and its resolution denying
reconsideration, ruling:
Upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of
testators holographic will has been
established and the handwriting and
signature therein (exhibit S) are hers,
enough to probate said will. Reversal of the
judgment appealed from and the probate of
the holographic will in question be called for.
The rule is that after plaintiff has completed
presentation of his evidence and the
defendant files a motion for judgment on
demurrer to evidence on the ground that
upon the facts and the law plaintiff has
shown no right to relief, if the motion is
granted and the order to dismissal is
reversed on appeal, the movant loses his
right to present evidence in his behalf (Sec.
1 Rule 35 Revised Rules of Court). Judgment
may, therefore, be rendered for appellant in
the instant case.
Wherefore, the order appealed from is
REVERSED and judgment rendered allowing
the probate of the holographic will of the
testator Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay,
Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will
of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court,
Misamis Oriental, Branch 18, a petition3 for
probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the
deceased Matilde Seo Vda. de Ramonal, was
of sound and disposing mind when she
executed the will on August 30, 1978, that
there was no fraud, undue influence, and
duress employed in the person of the
testator, and the will was written voluntarily.
The assessed value of the decedents
property, including all real and personal
property was about P400,000.00, at the
time of her death.4cräläwvirtualibräry
On June 28, 1990, Eugenia Ramonal Codoy
and Manuel Ramonal filed an opposition5 to
the petition for probate, alleging that the
holographic will was a forgery and that the
same is even illegible. This gives an
impression that a third hand of an interested
party other than the true hand of Matilde
Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates
incorporated or appearing on the will after
every disposition is out of the ordinary. If
the deceased was the one who executed the
will, and was not forced, the dates and the
signature should appear at the bottom after
the dispositions, as regularly done and not
after every disposition. And assuming that
the holographic will is in the handwriting of
the deceased, it was procured by undue and
improper pressure and influence on the part
of the beneficiaries, or through fraud and
trickery.
Respondents presented six (6) witnesses
and various documentary evidence.
Petitioners instead of presenting their
evidence, filed a demurrer6 to evidence,
claiming that respondents failed to establish
sufficient factual and legal basis for the
probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court
issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing
consideration, the Demurrer to Evidence
having being well taken, same is granted,
and the petition for probate of the document
(Exhibit S) on the purported Holographic Will
of the late Matilde Seo Vda. de Ramonal, is
denied for insufficiency of evidence and lack
of merits.7
On December 12, 1990, respondents filed a
notice of appeal,8 and in support of their
appeal, the respondents once again
reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the
testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of First
Instance of Misamis Oriental, where the
special proceedings for the probate of the
holographic will of the deceased was filed.
He produced and identified the. records of
the case. The documents presented bear the
signature of the deceased, Matilde Seo Vda.
de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of
the testatrix, with the writing treated or
admitted as genuine by the party against
whom the evidence is offered.
Generosa Senon, election registrar of
Cagayan de Oro, was presented to produce
and identify the voters affidavit of the
decedent. However, the voters affidavit was
not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that
the deceased Matilde Seo Vda. de Ramonal
was her aunt, and that after the death of
Matildes husband, the latter lived with her in
her parents house for eleven (11) years,
from 1958 to 1969. During those eleven
(11) years of close association with the
deceased, she acquired familiarity with her
signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda.
de Ramonal) in collecting rentals from her
various tenants of commercial buildings, and
the deceased always issued receipts. In
addition to this, she (witness Matilde
Binanay) assisted the deceased in posting
the records of the accounts, and carried
personal letters of the deceased to her
creditors.
Matilde Ramonal Binanay further testified
that at the time of the death of Matilde Vda.
de Ramonal, she left a holographic will dated
August 30, 1978, which was personally and
entirely written, dated and signed, by the
deceased and that all the dispositions
therein, the dates, and the signatures in said
will, were that of the deceased.
Fiscal Rodolfo Waga testified that before
he was appointed City Fiscal of Cagayan de
Oro, he was a practicing lawyer, and
handled all the pleadings and documents
signed by the deceased in connection with
the intestate proceedings of her late
husband, as a result of which he is familiar
with the handwriting of the latter. He
testified that the signature appearing in the
holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but
he can not be sure.
The fifth witness presented was Mrs.
Teresita Vedad, an employee of the
Department of Environment and Natural
Resources, Region 10. She testified that she
processed the application of the deceased
for pasture permit and was familiar with the
signature of the deceased, since the
deceased signed documents in her presence,
when the latter was applying for pasture
permit.
Finally, Evangeline Calugay, one of the
respondents, testified that she had lived
with the deceased since birth, and was in
fact adopted by the latter. That after a long
period of time she became familiar with the
signature of the deceased. She testified that
the signature appearing in the holographic
will is the true and genuine signature of
Matilde Seo Vda. de Ramonal.
The holographic will which was written in
Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for
Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500
square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at
Mandumol, Indahag to Evangeline R.
Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta.
Cruz Ramonal Village in favor of Evangeline
R. Calugay, Helen must continue with the
Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever
buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will
rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals,
rendered decision9 ruling that the appeal
was meritorious. Citing the decision in the
case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a
recognized authority in civil law, the Court of
Appeals held:
x x x even if the genuineness of the
holographic will were contested, we are
of the opinion that Article 811 of our present
civil code can not be interpreted as to
require the compulsory presentation of three
witnesses to identify the handwriting of the
testator, under penalty of having the
probate denied. Since no witness may have
been present at the execution of the
holographic will, none being required by law
(art. 810, new civil code), it becomes
obvious that the existence of witnesses
possessing the requisite qualifications is a
matter beyond the control of the proponent.
For it is not merely a question of finding and
producing any three witnesses; they must
be witnesses who know the handwriting and
signature of the testator and who can
declare (truthfully, of course, even if the law
does not express) that the will and the
signature are in the handwriting of the
testator. There may be no available witness
acquainted with the testators hand; or even
if so familiarized, the witness may be
unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of
article 811 may thus become an
impossibility. That is evidently the reason
why the second paragraph of article 811
prescribes that
in the absence of any competent witness
referred to in the preceding paragraph, and
if the court deems it necessary, expert
testimony may be resorted to.
As can be seen, the law foresees the
possibility that no qualified witness may be
found (or what amounts to the same thing,
that no competent witness may be willing to
testify to the authenticity of the will), and
provides for resort to expert evidence to
supply the deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented
if the will is contested and only one if no
contest is had) was derived from the rule
established for ordinary testaments (CF
Cabang vs. Delfinado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL 742). But it
can not be ignored that the requirement can
be considered mandatory only in case of
ordinary testaments, precisely because the
presence of at least three witnesses at the
execution of ordinary wills is made by law
essential to their validity (Art. 805). Where
the will is holographic, no witness need
be present (art.10), and the rule
requiring production of three witnesses
must be deemed merely permissive if
absurd results are to be avoided.
Again, under Art.811, the resort to expert
evidence is conditioned by the words if the
court deem it necessary, which reveal that
what the law deems essential is that the
court should be convinced of the wills
authenticity. Where the prescribed number
of witnesses is produced and the court is
convinced by their testimony that the will is
genuine, it may consider it unnecessary to
call for expert evidence. On the other hand,
if no competent witness is available, or none
of those produced is convincing, the court
may still, and in fact it should resort to
handwriting experts. The duty of the court,
in fine, is to exhaust all available lines of
inquiry, for the state is as much interested
as the proponent that the true intention of
the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the
genuineness of the holographic will were
contested, Article 811 of the civil code
cannot be interpreted as to require the
compulsory presentation of three witnesses
to identify the handwriting of the testator,
under penalty of the having the probate
denied. No witness need be present in the
execution of the holographic will. And the
rule requiring the production of three
witnesses is merely permissive. What
the law deems essential is that the court is
convinced of the authenticity of the will. Its
duty is to exhaust all available lines of
inquiry, for the state is as much interested
in the proponent that the true intention of
the testator be carried into effect. And
because the law leaves it to the trial court to
decide if experts are still needed, no
unfavorable inference can be drawn from a
partys failure to offer expert evidence, until
and unless the court expresses
dissatisfaction with the testimony of the lay
witnesses.10
According to the Court of Appeals,
Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and
in no uncertain terms testified that the
handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of
appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the
holographic will and the handwriting and
signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of
Azaola vs. Singson, 109 Phil. 102, relied
upon by the respondent Court of Appeals,
was applicable to the case.
(2) Whether or not the Court of Appeals
erred in holding that private respondents
had been able to present credible evidence
to prove that the date, text, and signature
on the holographic will were written entirely
in the hand of the testatrix.
(3) Whether or not the Court of Appeals
erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de
Ramonal.
In this petition, the petitioners ask whether
the provisions of Article 811 of the Civil
Code are permissive or mandatory. The
article provides, as a requirement for the
probate of a contested holographic will, that
at least three witnesses explicitly declare
that the signature in the will is the genuine
signature of the testator.
We are convinced, based on the language
used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a
mandatory order. We have ruled that shall
in a statute commonly denotes an
imperative obligation and is inconsistent
with the idea of discretion and that the
presumption is that the word shall, when
used in a statute is
mandatory.11cräläwvirtualibräry
Laws are enacted to achieve a goal intended
and to guide against an evil or mischief that
aims to prevent. In the case at bar, the goal
to achieve is to give effect to the wishes of
the deceased and the evil to be prevented is
the possibility that unscrupulous individuals
who for their benefit will employ means to
defeat the wishes of the testator.
So, we believe that the paramount
consideration in the present petition is to
determine the true intent of the deceased.
An exhaustive and objective consideration of
the evidence is imperative to establish the
true intent of the testator.
It will be noted that not all the witnesses
presented by the respondents testified
explicitly that they were familiar with the
handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First
Instance, Misamis Oriental, he merely
identified the record of Special Proceedings
No. 427 before said court. He was not
presented to declare explicitly that the
signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar
of Cagayan de Oro City, was presented to
identify the signature of the deceased in the
voters affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other
hand, testified that:
Q. And you said for eleven (11) years
Matilde Vda de Ramonal resided with your
parents at Pinikitan, Cagayan de Oro City.
Would you tell the court what was your
occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial
buildings at Pabayo-Gomez streets.12
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue
receipts?
A. Yes, sir.13
xxx
Q. Showing to you the receipt dated 23
October 1979, is this the one you are
referring to as one of the receipts which she
issued to them?
A. Yes, sir.
Q. Now there is that signature of
Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a
signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay,
whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of
accounts in behalf of Matilde Vda. De
Ramonal.
Q. How is this record of accounts made?
How is this reflected?
A. In handwritten.14
xxx
Q. In addition to collection of rentals,
posting records of accounts of tenants and
deed of sale which you said what else did
you do to acquire familiarity of the signature
of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.15
xxx
Q. You testified that at the time of her death
she left a will. I am showing to you a
document with its title tugon is this the
document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit S, there
is that handwritten tugon, whose
handwriting is this?
A. My aunt.
Q. Why do you say this is the
handwriting of your aunt?
A. Because I am familiar with her
signature.16
What Ms. Binanay saw were pre-prepared
receipts and letters of the deceased, which
she either mailed or gave to her tenants.
She did not declare that she saw the
deceased sign a document or write a note.
Further, during the cross-examination, the
counsel for petitioners elicited the fact that
the will was not found in the personal
belongings of the deceased but was in the
possession of Ms. Binanay. She testified
that:
Q. Mrs. Binanay, when you were asked by
counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said,
yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession
of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession
since as you said this was originally in the
possession of your mother?
A. 1985.17
xxx
Q. Now, Mrs. Binanay was there any
particular reason why your mother left that
will to you and therefore you have that in
your possession?
A. It was not given to me by my mother, I
took that in the aparador when she died.
Q. After taking that document you kept it
with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms.
Binanay kept the fact about the will from
petitioners, the legally adopted children of
the deceased. Such actions put in issue her
motive of keeping the will a secret to
petitioners and revealing it only after the
death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the
following were established:
Q. Now, in 1978 Matilde Seno Vda de
Ramonal was not yet a sickly person is that
correct?
A. Yes, sir.
Q. She was up and about and was still
uprightly and she could walk agilely and she
could go to her building to collect rentals, is
that correct?
A. Yes, sir.19
xxx
Q. Now, let us go to the third signature of
Matilde Ramonal. Do you know that there
are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is
continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda
de Ramonal the letter L in Matilde is
continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx
Q. Now, that was 1979, remember one year
after the alleged holographic will. Now, you
identified a document marked as Exhibit R.
This is dated January 8,1978 which is only
about eight months from August 30,1978.
Do you notice that the signature Matilde Vda
de Ramonal is beautifully written and
legible?
A. Yes, sir the handwriting shows that she
was very exhausted.
Q. You just say that she was very exhausted
while that in 1978 she was healthy was not
sickly and she was agile. Now, you said she
was exhausted?
A. In writing.
Q. How did you know that she was
exhausted when you were not present and
you just tried to explain yourself out
because of the apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature
dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice
that there is no retracing; there is no
hesitancy and the signature was written on a
fluid movement. x x x And in fact , the name
Eufemia R. Patigas here refers to one of the
petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is
not only with the questioned signature
appearing in the alleged holographic will
marked as Exhibit X but in the handwriting
themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the
holographic will was written, dated and
signed in the handwriting of the testator.
She testified that:
Q. You testified that you stayed with the
house of the spouses Matilde and Justo
Ramonal for the period of 22 years. Could
you tell the court the services if any which
you rendered to Matilde Ramonal?
A. During my stay I used to go with her to
the church, to the market and then to her
transactions.
Q. What else? What services that you
rendered?
A. After my college days I assisted her in
going to the bank, paying taxes and to her
lawyer.
Q. What was your purpose of going to her
lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years
did you acquire familiarity of the handwriting
of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx
Q. Now, I am showing to you Exhibit S
which is captioned tugon dated Agosto 30,
1978 there is a signature here below item
No. 1, will you tell this court whose
signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give
as to why she was familiar with the
handwriting of the deceased was because
she lived with her since birth. She never
declared that she saw the deceased write a
note or sign a document.
The former lawyer of the deceased, Fiscal
Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my
godmother the husband is my godfather.
Actually I am related to the husband by
consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx
Q. Can you tell this court whether the
spouses Justo Ramonal and Matilde Ramonal
have legitimate children?
A. As far as I know they have no legitimate
children.25
xxx
Q. You said after becoming a lawyer you
practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the
deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition,
of properties.
Q. When you said assisted, you acted as her
counsel? Any sort of counsel as in what case
is that, Fiscal?
A. It is about the project partition to
terminate the property, which was under the
court before.26
xxx
Q. Appearing in special proceeding no. 427
is the amended inventory which is marked
as exhibit N of the estate of Justo Ramonal
and there appears a signature over the type
written word Matilde vda de Ramonal, whose
signature is this?
A. That is the signature of Matilde Vda de
Ramonal.
Q. Also in exhibit n-3, whose signature is
this?
A. This one here that is the signature of Mrs.
Matilde vda de Ramonal.27
xxx
Q. Aside from attending as counsel in that
Special Proceeding Case No. 427 what were
the other assistance wherein you were
rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her
in other matters but if there are documents
to show that I have assisted then I can
recall.28
xxx
Q. Now, I am showing to you exhibit S
which is titled tugon, kindly go over this
document, Fiscal Waga and tell the court
whether you are familiar with the
handwriting contained in that document
marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose
signature is this?
A. I think this signature here it seems to be
the signature of Mrs. Matilde vda de
Ramonal.
Q. Now, in item No. 2 there is that signature
here of Matilde Vda de Ramonal, can you tell
the court whose signature is this?
A. Well, that is similar to that signature
appearing in the project of partition.
Q. Also in item no. 3 there is that signature
Matilde Vda de Ramonal, can you tell the
court whose signature is that?
A. As I said, this signature also seems to be
the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it
is being written.
Q. How about this signature in item no. 4,
can you tell the court whose signature is
this?
A. The same is true with the signature in
item no. 4. It seems that they are similar.29
xxx
Q. Mr. Prosecutor, I heard you when you
said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be
the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of
partition.
Q. So you are not definite that this is
the signature of Matilde vda de
Ramonal. You are merely supposing
that it seems to be her signature
because it is similar to the signature of
the project of partition which you have
made?
A. That is true.30
From the testimonies of these witnesses, the
Court of Appeals allowed the will to probate
and disregard the requirement of three
witnesses in case of contested holographic
will, citing the decision in Azaola vs.
Singson,31 ruling that the requirement is
merely directory and not mandatory.
In the case of Ajero vs. Court of
Appeals,32 we said that the object of the
solemnities surrounding the execution of
wills is to close the door against bad faith
and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this
subject should be interpreted in such a way
as to attain these primordial ends. But, on
the other hand, also one must not lose sight
of the fact that it is not the object of the law
to restrain and curtail the exercise of the
right to make a will.
However, we cannot eliminate the possibility
of a false document being adjudged as the
will of the testator, which is why if the
holographic will is contested, that law
requires three witnesses to declare that the
will was in the handwriting of the deceased.
The will was found not in the personal
belongings of the deceased but with one of
the respondents, who kept it even before
the death of the deceased. In the testimony
of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or
five years before the death of the deceased.
There was no opportunity for an expert to
compare the signature and the handwriting
of the deceased with other documents
signed and executed by her during her
lifetime. The only chance at comparison was
during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms.
Binanay to compare the documents which
contained the signature of the deceased with
that of the holographic will and she is not a
handwriting expert. Even the former lawyer
of the deceased expressed doubts as to the
authenticity of the signature in the
holographic will.
A visual examination of the holographic will
convince us that the strokes are different
when compared with other documents
written by the testator. The signature of the
testator in some of the disposition is not
readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic
will dated August 30, 1978,33 and the
signatures in several documents such as the
application letter for pasture permit dated
December 30, 1980,34 and a letter dated
June 16, 1978,35 the strokes are different. In
the letters, there are continuous flows of the
strokes, evidencing that there is no
hesitation in writing unlike that of the
holographic will. We, therefore, cannot be
certain that the holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed
from is SET ASIDE. The records are ordered
remanded to the court of origin with
instructions to allow petitioners to adduce
evidence in support of their opposition to the
probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
G.R. No. L-12190             August 30, ........................ agi
1958 At ang aking lahat ng ibang kayamanan sa
TESTATE ESTATE OF FELICIDAD Maynila at iba panglugar ay aking
ESGUERRA ALTO-YAP deceased. ipinamamana sa aking asawang si Idelfonso
FAUSTO E. GAN, petitioner-appellant, D. Yap sa kondisyong siya'y magpapagawa
vs. ng isang Health Center na nagkakahalaga ng
ILDEFONSO YAP, oppositor-appellee. di kukulangin sa halagang P60,000.00 sa
Benedicto C. Belran, Crispin D. Baizas and bayan ng Pulilan, Bulacan, na nakaukit ang
Roberto H. Benitez for appellant. aking pangalang Felicidad Esguerra-Alto. At
Arturo M. Tolentino for appellee. kung ito ay may kakulangan man ay bahala
BENGZON, J.: na ang aking asawa ang magpuno upang
On November 20, 1951, Felicidad Esguerra matupad ang aking kagustuhan.
Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving (Lagda) Felicidad E. Alto-Yap.
properties in Pulilan, Bulacan, and in the Opposing the petition, her surviving husband
City of Manila. Ildefonso Yap asserted that the deceased
On March 17, 1952, Fausto E. Gan initiated had not left any will, nor executed any
them proceedings in the Manila court of first testament during her lifetime.
instance with a petition for the probate of a After hearing the parties and considering
holographic will allegedly executed by the their evidence, the Hon. Ramon R. San Jose,
deceased, substantially in these words: Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration
Nobyembre 5, 1951.
failed. Hence this appeal.
Ako, si Felicidad E. Alto-Yap, may asawa, at The will itself was not presented. Petitioner
ganap na pag-iisip, ay nagsasalaysay na ang tried to establish its contents and due
aking kayamanan sa bayan ng Pulilan, execution by the statements in open court of
Bulacan ay aking ipinamamana sa aking Felina Esguerra, Primitivo Reyes, Socorro
mga kamag-anakang sumusunod: Olarte and Rosario Gan Jimenez, whose
Vicente Esguerra, 5 testimonies may be summarized as follows:
Sr. ....................................... Bah Sometime in 1950 after her last trip abroad,
...... agi Felicidad Esguerra mentioned to her first
Fausto E. 2 cousin, Vicente Esguerra, her desire to make
Gan ...................................... Bah a will. She confided however that it would be
................... agi useless if her husband discovered or knew
about it. Vicente consulted with Fausto E.
Rosario E. 2
Gan, nephew of Felicidad, who was then
Gan ...................................... Bah
preparing for the bar examinations. The
................... agi
latter replied it could be done without any
Filomena 1 witness, provided the document was entirely
Alto ...................................... Bah in her handwriting, signed and dated by her.
.................... agi Vicente Esguerra lost no time in transmitting
Beatriz 1 the information, and on the strength of it, in
Alto ...................................... Bah the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila,
Felicidad wrote, signed and dated a
holographic will substantially of the tenor
above transcribed, in the presence of her
niece, Felina Esguerra (daughter of Vicente),
who was invited to read it. In the afternoon
of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence
of Felina Esguerra, who again read it.
Nine days later, he had other visitors:
Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the
will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was
confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which
was contained in a purse, to Felina Esguerra.
But a few hours later, Ildefonso Yap, her
husband, asked Felina for the purse: and
being afraid of him by reason of his well-
known violent temper, she delivered it to
him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to
demand it the next day shortly before the
death of Felicidad. Again, Felina handed it to
him but not before she had taken the purse
to the toilet, opened it and read the will for
the last time.2
From the oppositor's proof it appears that
Felicidad Esguerra had been suffering from
heart disease for several years before her
death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr.
Agustin Liboro and others; that in May 1950
husband and wife journeyed to the United
States wherein for several weeks she was
treated for the disease; that thereafter she
felt well and after visiting interesting places,
the couple returned to this country in August
1950. However, her ailment recurred, she
suffered several attacks, the most serious of
which happened in the early morning of the
first Monday of November 1951 (Nov. 5).
The whole household was surprised and
alarmed, even the teachers of the
Harvardian Colleges occupying the lower
floors and of by the Yap spouses. Physician's
help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in
bed, her head held high by her husband.
Injections and oxygen were administered.
Following the doctor's advice the patient
stayed in bed, and did nothing the whole
day, her husband and her personal
attendant, Mrs. Bantique, constantly at her
side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and
could have made no will on that day.
The trial judge refused to credit the
petitioner's evidence for several reasons, the
most important of which were these: (a) if
according to his evidence, the decedent
wanted to keep her will a secret, so that her
husband would not know it, it is strange she
executed it in the presence of Felina
Esguerra, knowing as she did that witnesses
were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the
decedent it is hard to believe that the latter
would have allowed the former to see and
read the will several times; (c) it is
improbable that the decedent would have
permitted Primitivo Reyes, Rosario Gan
Jimenez and Socorro Olarte to read her will,
when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is
also improbable that her purpose being to
conceal the will from her husband she would
carry it around, even to the hospital, in her
purse which could for one reason or another
be opened by her husband; (e) if it is true
that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will
was there, it is hard to believe that he
returned it without destroying the will, the
theory of the petitioner being precisely that
the will was executed behind his back for
fear he will destroy it.
In the face of these improbabilities, the trial
judge had to accept the oppositor's evidence
that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of
appellant's brief discussed the testimony of
the oppositor and of his witnesses in a
vigorous effort to discredit them. It appears
that the same arguments, or most of them,
were presented in the motion to reconsider;
but they failed to induce the court a quo  to
change its mind. The oppositor's brief, on
the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the
same matters, because in our opinion the
case should be decided not on the weakness
of the opposition but on the strength of the
evidence of the petitioner, who has the
burden of proof.
The Spanish Civil Code permitted the
execution of holographic wills along with
other forms. The Code of Civil Procedure
(Act 190) approved August 7, 1901, adopted
only one form, thereby repealing the other
forms, including holographic wills.
The New Civil Code effective in 1950 revived
holographic wills in its arts. 810-814. "A
person may execute a holographic will which
must be entirely written, dated, and signed
by the hand of the testator himself. It is
subject to no other form and may be made
in or out of the Philippines, and need not be
witnessed."
This is indeed a radical departure from the
form and solemnities provided for wills
under Act 190, which for fifty years (from
1901 to 1950) required wills to be
subscribed by the testator and three credible
witnesses in each  and every page; such
witnesses to attest to the number of sheets
used and to the fact that the testator signed
in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been
said, is to close the door against bad faith
and fraud, to prevent substitution of wills, to
guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to
avoid those who have no right to succeed
the testator would succeed him and be
benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855).
However, formal imperfections may be
brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs
Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the
dominant requirements to be fulfilled when
such will is submitted to the courts for
allowance. For that purpose the testimony of
one of the subscribing witnesses would be
sufficient if there is no opposition (Sec. 5,
Rule 77). If there is, the three must testify,
if available. (Cabang vs. Delfinado, 34 Phil.,
291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and
of other additional witnesses) the court may
form its opinion as to the genuineness and
authenticity of the testament, and the
circumstances its due execution.
Now, in the matter of holographic wills, no
such guaranties of truth and veracity are
demanded, since as stated, they need no
witnesses; provided however, that they are
"entirely written, dated, and signed by the
hand of the testator himself." The law, it is
reasonable to suppose, regards the
document itself  as material proof of
authenticity, and as its own safeguard, since
it could at any time, be demonstrated to be
— or not to be — in the hands of the
testator himself. "In the probate of a
holographic will" says the New Civil Code, "it
shall be necessary that at least one witness
who knows the handwriting and signature of
the testator explicitly declare that the will
and the signature are in the handwriting of
the testator. If the will is contested, at least
three such witnesses shall be required. In
the absence of any such witnesses, (familiar
with decedent's handwriting) and if the court
deem it necessary, expert testimony may be
resorted to."
The witnesses so presented do not need to
have seen the execution of the holographic
will. They may be mistaken in their opinion
of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand.
However, the oppositor may present other
witnesses who also know the testator's
handwriting, or some expert witnesses, who
after comparing the will with other writings
or letters of the deceased, have come to the
conclusion that such will has not been
written by the hand of the deceased. (Sec.
50, Rule 123). And the court, in view of such
contradictory testimony may use its own
visual sense, and decide in the face of the
document, whether the will submitted to it
has indeed been written by the testator.
Obviously, when the will itself is not
submitted, these means of opposition,
and of assessing the evidence  are not
available. And then the only guaranty of
authenticity3 — the testator's handwriting —
has disappeared.
Therefore, the question presents itself, may
a holographic will be probated upon the
testimony of witnesses  who have allegedly
seen it and who declare that it was in the
handwriting of the testator? How can the
oppositor prove that such document was not
in the testator's handwriting? His witnesses
who know testator's handwriting have not
examined it. His experts can not testify,
because there is no way to compare the
alleged testament with other documents
admittedly, or proven to be, in the testator's
hand. The oppositor will, therefore, be
caught between the upper millstone of his
lack of knowledge of the will or the form
thereof, and the nether millstone of his
inability to prove its falsity. Again the
proponent's witnesses may be honest and
truthful; but they may have been shown a
faked document, and having no interest to
check the authenticity thereof have taken no
pains to examine and compare. Or they may
be perjurers boldly testifying, in the
knowledge that none could convict them of
perjury, because no one could prove that
they have not "been shown" a document
which they believed was in the handwriting
of the deceased. Of course, the competency
of such perjured witnesses to testify as to
the handwriting could be tested by
exhibiting to them other writings sufficiently
similar to those written by the deceased; but
what witness or lawyer would not foresee
such a move and prepare for it? His
knowledge of the handwriting established,
the witness (or witnesses) could simply stick
to his statement: he has seen and read a
document which he believed was in the
deceased's handwriting. And the court and
the oppositor would practically be at the
mercy of such witness (or witnesses) not
only as to the execution, but also as to the
contents  of the will. Does the law permit
such a situation?
The Rules of Court, (Rule 77) approved in
1940 allow proof (and probate) of a lost or
destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original
document. Yet such Rules could not have
contemplated holographic wills which could
not then be validly made here. (See also
Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to
holographic wills?
Spanish commentators agree that one of the
greatest objections to the holographic will is
that it may be lost or stolen4 — an implied
admission that such loss or theft renders it
useless..
This must be so, because the Civil Code
requires it to be protocoled and presented to
the judge, (Art. 689) who shall subscribe it
and require its  identity to be established by
the three witnesses who depose that they
have no reasonable doubt that the will  was
written by the testator (Art. 691). And if the
judge considers that the identity of the will
has been proven he shall order that it be
filed (Art. 693). All these, imply presentation
of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires
that the surviving spouse and the legitimate
ascendants and descendants be summoned
so that they may make "any statement they
may desire to submit with respect to the
authenticity of the will." As it is universally
admitted that the holographic will is usually
done by the testator and by himself alone,
to prevent others from knowing either its
execution or its contents, the above article
692 could not have the idea of simply
permitting such relatives to state whether
they know of the will, but whether in the
face of the document itself  they think the
testator wrote it. Obviously, this they can't
do unless the will itself  is presented to the
Court and to them.
Undoubtedly, the intention of the law is to
give the near relatives the choice of either
complying with the will if they think it
authentic, or to oppose it, if they think it
spurious.5 Such purpose is frustrated when
the document is not presented for their
examination. If it be argued that such choice
is not essential, because anyway the
relatives may oppose, the answer is that
their opposition will be at a distinct
disadvantage, and they have the right and
privilege  to comply with the will, if
genuine, a right which they  should not be
denied by withholding inspection thereof
from them.
We find confirmation of these ideas--about
exhibition of the document itself--in the
decision of the Supreme Court of Spain of
June 5, 1925, which denied  protocolization
or probate to a document containing
testamentary dispositions in the handwriting
of the deceased, but apparently
mutilated, the signature and some words
having been torn from it. Even in the face of
allegations and testimonial evidence (which
was controverted), ascribing the mutilation
to the opponents of the will. The aforesaid
tribunal declared that, in accordance with
the provision of the Civil Code (Spanish) the
will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y
estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que
sea valido el testamento olografo debera
estar escrito todo el y firmado por testador,
con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez
y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que
cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada
redaccion el precepto legal, y por el tiempo
en que el verbo se emplea, se desprende la
necesidad de que el documento se
encuentre  en dichas condiciones en el
momento de ser presentado a la Autoridad
competente, para au adveracion y will.
protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el
de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que
sea la causa de la falta de firma, y sin
perjuicio de las acciones que puedan
ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona
culpable, si la hubiere, o su castigo en via
criminal si procediere, por constituir dicha
omision un defecto insubsanable . . . .
This holding aligns with the ideas on
holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil
Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro
segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda,
fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o
el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo
la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea
confirmada la manda. E depues que todo
esto fuere connoscido, el obispo o el juez, o
otras testimonios confirmen el escripto de la
manda otra vez, y en esta manera vala la
manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself
must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will
not distribute the property of the deceased
in accordance with his holographic will,
unless they are shown his handwriting and
signature.7
Parenthetically, it may be added that even
the French Civil Law considers the loss of
the holographic will to be fatal. (Planiol y
Ripert, Derecho Civil Frances, traduccion por
Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together,
we reach the conclusion that the execution
and the contents of a lost or destroyed
holographic will may not be proved by the
bare testimony of witnesses who have seen
and/or read such will.8
Under the provisions of Art. 838 of the New
Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate,
however, to make this Rule decisive of this
controversy, simultaneously with its
promulgation. Anyway, decision of the
appeal may rest on the sufficiency, rather
the insufficiency, of the evidence presented
by petitioner Fausto E. Gan.
At this point, before proceeding further, it
might be convenient to explain why, unlike
holographic wills, ordinary wills may be
proved by testimonial evidence when lost or
destroyed. The difference lies in the nature
of the wills. In the first, the only guarantee
of authenticity is the handwriting itself; in
the second, the testimony of the subscribing
or instrumental witnesses (and of the
notary, now). The loss of the holographic
will entails the loss of the only medium of
proof; if the ordinary will is lost, the
subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard
to convince three witnesses (four with the
notary) deliberately to lie. And then their lies
could be checked and exposed, their
whereabouts and acts on the particular day,
the likelihood that they would be called by
the testator, their intimacy with the testator,
etc. And if they were intimates or trusted
friends of the testator they are not likely to
end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they
can not receive anything on account of the
Whereas in the case of holographic wills, if appealed decision, we find it hard to believe
oral testimony were admissible9 only one that the deceased should show her will
man could engineer the fraud this way: after precisely to relatives who had received
making a clever or passable imitation of the nothing from it: Socorro Olarte and Primitivo
handwriting and signature of the deceased, Reyes. These could pester her into
he may contrive to let three honest and amending her will to give them a share, or
credible witnesses see and read the forgery; threaten to reveal its execution to her
and the latter, having no interest, could husband Ildefonso Yap. And this leads to
easily fall for it, and in court they would in another point: if she wanted so much to
all good faith affirm its genuineness and conceal the will from her husband, why did
authenticity. The will having been lost — the she not entrust it to her beneficiaries?
forger may have purposely destroyed it in Opportunity to do so was not lacking: for
an "accident" — the oppositors have no way instance, her husband's trip to Davao, a few
to expose the trick and the error, because days after the alleged execution of the will.
the document itself is not at hand. And In fine, even if oral testimony were
considering that the holographic will may admissible to establish and probate a lost
consist of two or three pages, and only holographic will, we think the evidence
one  of them need be signed, the submitted by herein petitioner is so tainted
substitution of the unsigned pages, which with improbabilities and inconsistencies that
may be the most important ones, may go it fails to measure up to that "clear and
undetected. distinct" proof required by Rule 77, sec. 6.11
If testimonial evidence of holographic wills Wherefore, the rejection of the alleged will
be permitted, one more objectionable must be sustained.
feature — feasibility of forgery — would be Judgment affirmed, with costs against
added to the several objections to this kind petition
of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.10
One more fundamental difference: in the
case of a lost will, the three subscribing
witnesses would be testifying to a fact  which
they saw, namely the act of the testator of
subscribing the will; whereas in the case of a
lost holographic will, the witnesses would
testify as to their opinion  of the handwriting
which they allegedly saw, an opinion which
can not be tested in court, nor directly
contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by
the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the
dubious circumstances described in the
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO
APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-
appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by
the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules
of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a
petition with the Court of First Instance of
Rizal for the probate of the holographic will
of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432,
was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes
Expedita Bonilla Frias and Ephraim Bonilla
on the following grounds:
(1) Appellant was estopped from claiming
that the deceased left a will by failing to
produce the will within twenty days of the
death of the testator as required by Rule 75,
section 2 of the Rules of Court;
(2) The alleged copy of the alleged
holographic will did not contain a disposition
of property after death and was not intended
to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and
not an alleged copy thereof, must be
produced, otherwise it would produce no
effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the
consolidation of the case with another case
Sp. Proc. No, 8275). Their motion was
granted by the court in an order dated April
4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees
moved again to dismiss the petition for the
probate of the will. They argued that:
(1) The alleged holographic was not a last
will but merely an instruction as to the
management and improvement of the
schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills
cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion
to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order
was contrary to law and settled
pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and
dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the
original.
In the case of Gam vs. Yap, 104 Phil. 509,
522, the Supreme Court held that 'in the
matter of holographic wills the law, it is
reasonable to suppose, regards the
document itself as the material proof of
authenticity of said wills.
MOREOVER, this Court notes that the
alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla
died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the
execution of the will to the death of the
decedent, the fact that the original of the
will could not be located shows to our mind
that the decedent had discarded before his
death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was
denied. Hence, an appeal to the Court of
Appeals in which it is contended that the
dismissal of appellant's petition is contrary
to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward
the case to this Court on the ground that the
appeal does not involve question of fact and
alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING
THAT A LOST HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING
THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN
DISMISSING APPELLANT'S WILL.
The only question here is whether a
holographic will which was lost or cannot be
found can be proved by means of a
photostatic copy. Pursuant to Article 811 of
the Civil Code, probate of holographic wills is
the allowance of the will by the court after
its due execution has been proved. The
probate may be uncontested or not. If
uncontested, at least one Identifying witness
is required and, if no witness is available,
experts may be resorted to. If contested, at
least three Identifying witnesses are
required. However, if the holographic will
has been lost or destroyed and no other
copy is available, the will can not be
probated because the best and only
evidence is the handwriting of the testator in
said will. It is necessary that there be a
comparison between sample handwritten
statements of the testator and the
handwritten will. But, a photostatic copy or
xerox copy of the holographic will may be
allowed because comparison can be made
with the standard writings of the testator. In
the case of Gam vs. Yap, 104 PHIL. 509, the
Court ruled that "the execution and the
contents of a lost or destroyed holographic
will may not be proved by the bare
testimony of witnesses who have seen
and/or read such will. The will itself must be
presented; otherwise, it shall produce no
effect. The law regards the document itself
as material proof of authenticity." But, in
Footnote 8 of said decision, it says that
"Perhaps it may be proved by a
photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other
similar means, if any, whereby the
authenticity of the handwriting of the
deceased may be exhibited and tested
before the probate court," Evidently, the
photostatic or xerox copy of the lost or
destroyed holographic will may be admitted
because then the authenticity of the
handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court
dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of
the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA,
Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for
respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent
GREGORIO K. KALAW, claiming to be the
sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of
First Instance of Batangas, Branch VI, Lipa
City, for the probate of her holographic Will
executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age,
single, and a resident of Lipa City, being of
sound and disposing mind and memory, do
hereby declare thus to be my last will and
testament.
1. It is my will that I'll be burried in the
cemetery of the catholic church of Lipa City.
In accordance with the rights of said Church,
and that my executrix hereinafter named
provide and erect at the expose of my state
a suitable monument to perpetuate my
memory.
xxx xxx xxx
The holographic Will, as first written, named
ROSA K. Kalaw, a sister of the testatrix as
her sole heir. Hence, on November 10,
1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the
holographic Will contained alterations,
corrections, and insertions without the
proper authentication by the full signature of
the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic
Will, as first written, should be given effect
and probated so that she could be the sole
heir thereunder.
After trial, respondent Judge denied probate
in an Order, dated September 3, 197 3,
reading in part:
The document Exhibit "C" was submitted to
the National Bureau of Investigation for
examination. The NBI reported that the
handwriting, the signature, the insertions
and/or additions and the initial were made
by one and the same person. Consequently,
Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only
question is whether the win, Exhibit 'C',
should be admitted to probate although the
alterations and/or insertions or additions
above-mentioned were not authenticated by
the full signature of the testatrix pursuant to
Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to
assert the provision of Art. 814 on the
ground that they themselves agreed thru
their counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it
impliedly understood, that the oppositors
would be in estoppel.
The Court finds, therefore, that the provision
of Article 814 of the Civil Code is applicable
to Exhibit "C". Finding the insertions,
alterations and/or additions in Exhibit "C"
not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the
Court will deny the admission to probate of
Exhibit "C".
WHEREFORE, the petition to probate Exhibit
"C" as the holographic will of Natividad K.
Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for
reconsideration arguing that since the
alterations and/or insertions were the
testatrix, the denial to probate of her
holographic Will would be contrary to her
right of testamentary disposition.
Reconsideration was denied in an Order,
dated November 2, 1973, on the ground
that "Article 814 of the Civil Code being ,
clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973,
denying probate, and the Order dated
November 2, 1973 denying reconsideration,
ROSA filed this Petition for Review on
certiorari on the sole legal question of
whether or not the original unaltered text
after subsequent alterations and insertions
were voided by the Trial Court for lack of
authentication by the full signature of the
testatrix, should be probated or not, with
her as sole heir.
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will litem not been
noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most
only as respects the particular words erased,
corrected or interlined.1 Manresa gave an
Identical commentary when he said "la
omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1895." 2
However, when as in this case, the
holographic Will in dispute had only one
substantial provision, which was altered by
substituting the original heir with another,
but which alteration did not carry the
requisite of full authentication by the full
signature of the testator, the effect must be
that the entire Will is voided or revoked for
the simple reason that nothing remains in
the Will after that which could remain valid.
To state that the Will as first written should
be given efficacy is to disregard the seeming
change of mind of the testatrix. But that
change of mind can neither be given effect
because she failed to authenticate it in the
manner required by law by affixing her full
signature,
The ruling in Velasco, supra,  must be held
confined to such insertions, cancellations,
erasures or alterations in a holographic Will,
which affect only the efficacy of the altered
words themselves but not the essence and
validity of the Will itself. As it is, with the
erasures, cancellations and alterations made
by the testatrix herein, her real intention
cannot be determined with certitude. As
Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code,
whence Article 814 of the new Civil Code
was derived:
... No infringe lo dispuesto en este articulo
del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo
que contenga palabras tachadas,
enmendadas o entre renglones no salvadas
por el testador bajo su firnia segun previene
el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca
al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la
validez del testamento olografo, ya porque,
de admitir lo contrario, se Ilegaria al
absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento,
vinieran a anular este, y ya porque el
precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del
Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida,
paro no el documento que las contenga, y
con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas
no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador,
o constituyan meros accidentes de ortografia
o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de
excepcion contenida en este ultimo fallo,  es
preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala
bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del
testador manifiesta en el documento. Asi lo
advierte la sentencia de 29 de Noviembre de
1916, que declara nulo un testamento
olografo por no estar salvada por el testador
la enmienda del guarismo ultimo del año en
que fue extendido3 (Emphasis ours).
WHEREFORE, this Petition is hereby
dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby
affirmed in toto. No costs.
SO ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA
AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the
Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated
March 30, 1992, the dispositive portion of
which reads;
PREMISES CONSIDERED, the questioned
decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE,
and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the
RTC of Quezon City, Branch 94, 2 in Sp.
Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will
of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the
following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand,
Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted
Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged
that at the time of its execution, she was of
sound and disposing mind, not acting under
duress, fraud or undue influence, and was in
every respect capacitated to dispose of her
estate by will.
Private respondent opposed the petition on
the grounds that: neither the testament's
body nor the signature therein was in
decedent's handwriting; it contained
alterations and corrections which were not
duly signed by decedent; and, the will was
procured by petitioners through improper
pressure and undue influence. The petition
was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a
house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said
property could not be conveyed by decedent
in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial
court admitted the decedent's holographic
will to probate. It found, inter alia:
Considering then that the probate
proceedings herein must decide only the
question of identity of the will, its due
execution and the testamentary capacity of
the testatrix, this probate court finds no
reason at all for the disallowance of the will
for its failure to comply with the formalities
prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show
that the will in question is different from the
will actually executed by the testatrix. The
only objections raised by the oppositors . . .
are that the will was not written in the
handwriting of the testatrix which properly
refers to the question of its due execution,
and not to the question of identity of will. No
other will was alleged to have been executed
by the testatrix other than the will herein
presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be
accepted, i.e., the will submitted in Court
must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written,
dated and signed in the handwriting of the
testatrix has been disputed, the petitioners,
however, have satisfactorily shown in Court
that the holographic will in question was
indeed written entirely, dated and signed in
the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown
knowledge of the handwriting of the
testatrix have been presented and have
explicitly and categorically identified the
handwriting with which the holographic will
in question was written to be the genuine
handwriting and signature of the testatrix.
Given then the aforesaid evidence, the
requirement of the law that the holographic
will be entirely written, dated and signed in
the handwriting of the testatrix has been
complied with.
xxx xxx xxx
As to the question of the testamentary
capacity of the testratix, (private
respondent) Clemente Sand himself has
testified in Court that the testatrix was
completely in her sound mind when he
visited her during her birthday celebration in
1981, at or around which time the
holographic will in question was executed by
the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of
making the will, knew the value  of the
estate to be disposed of, the
proper object  of her bounty, and
the character of the testamentary act . . .
The will itself shows that the testatrix even
had detailed knowledge of the nature of her
estate. She even identified the lot number
and square meters of the lots she had
conveyed by will. The objects of her bounty
were likewise identified explicitly. And
considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there
is more than sufficient showing that she
knows the character of the testamentary
act.
In this wise, the question of identity of the
will, its due execution and the testamentary
capacity of the testatrix has to be resolved
in favor of the allowance of probate of the
will submitted herein.
Likewise, no evidence was presented to
show sufficient reason for the disallowance
of herein holographic will. While it was
alleged that the said will was procured by
undue and improper pressure and influence
on the part of the beneficiary or of some
other person, the evidence adduced have
not shown any instance where improper
pressure or influence was exerted on the
testatrix. (Private respondent) Clemente
Sand has testified that the testatrix was still
alert at the time of the execution of the
will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent
person and has a mind of her own. Her
independence of character and to some
extent, her sense of superiority, which has
been testified to in Court, all show the
unlikelihood of her being unduly influenced
or improperly pressured to make the
aforesaid will. It must be noted that the
undue influence or improper pressure in
question herein only refer to the making of a
will and not as to the specific testamentary
provisions therein which is the proper
subject of another proceeding. Hence, under
the circumstances, this Court cannot find
convincing reason for the disallowance of
the will herein.
Considering then that it is a well-established
doctrine in the law on succession that in
case of doubt, testate succession should be
preferred over intestate succession, and the
fact that no convincing grounds were
presented and proven for the disallowance
of the holographic will of the late Annie
Sand, the aforesaid will submitted herein
must be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and
the petition for probate of decedent's will
was dismissed. The Court of Appeals found
that, "the holographic will fails to meet the
requirements for its validity." 4 It held that
the decedent did not comply with Articles
813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and date, such date
validates the dispositions preceding it,
whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will,
the testator must authenticate the same by
his full signature.
It alluded to certain dispositions in the will
which were either unsigned and undated, or
signed but not dated. It also found that the
erasures, alterations and cancellations made
thereon had not been authenticated by
decedent.
Thus, this appeal which is impressed with
merit.
Section 9, Rule 76 of the Rules of Court
provides that will shall be disallowed in any
of the following cases:
(a) If not executed and attested as required
by law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and
improper pressure and influence, on the part
of the beneficiary, or of some other person
for his benefit;
(e) If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his will
at the time of fixing his signature thereto.
In the same vein, Article 839 of the New
Civil Code reads:
Art. 839: The will shall be disallowed in any
of the following cases;
(1) If the formalities required by law have
not been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and
improper pressure and influence, on the part
of the beneficiary or of some other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intend that the instrument he signed
should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds
can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to
probate, the only issues to be resolved are:
(1) whether the instrument submitted is,
indeed, the decedent's last will and
testament; (2) whether said will was
executed in accordance with the formalities
prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at
the time the will was executed; and, (4)
whether the execution of the will and its
signing were the voluntary acts of the
decedent. 6
In the case at bench, respondent court held
that the holographic will of Anne Sand was
not executed in accordance with the
formalities prescribed by law. It held that
Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence,
it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan
vs.  Abangan, 40 Phil. 476, 479
(1919),  that:
The object of the solemnities surrounding
the execution of wills is to close the door
against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity.
Therefore, the laws on this subject should be
interpreted in such a way as to attain these
primordial ends. But, on the other hand,
also one must not lose sight of the fact that
it is not the object of the law to restrain and
curtail the exercise of the right to make a
will. So when an interpretation already given
assures such ends, any other interpretation
whatsoever, that adds nothing but demands
more requisites entirely unnecessary,
useless and frustrative of the testator's last
will, must be disregarded.
For purposes of probating non-holographic
wills, these formal solemnities include the
subscription, attestation, and
acknowledgment requirements under
Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other
hand, what assures authenticity is the
requirement that they be totally autographic
or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil
Code, thus:
A person may execute a holographic will
which must be entirely written, dated, and
signed by the hand of the testator
himself. It is subject to no other form, and
may be made in or out of the Philippines,
and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities
will not result in the disallowance of a
holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil
Code shows that its requirement affects the
validity of the dispositions contained in the
holographic will, but not its probate. If the
testator fails to sign and date some of the
dispositions, the result is that these
dispositions  cannot be effectuated. Such
failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be
admitted to probate, notwithstanding non-
compliance with the provisions of Article
814. In the case of Kalaw vs.  Relova 132
SCRA 237 242  (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been
noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most
only as respects the particular words erased,
corrected or interlined. Manresa gave an
identical commentary when he said "la
omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated
alterations, cancellations or insertions were
made on the date of the holographic will or
on testator's signature, 9 their presence does
not invalidate the will itself. 10 The lack of
authentication will only result in
disallowance of such changes.
It is also proper to note that the
requirements of authentication of changes
and signing and dating of dispositions
appear in provisions (Articles 813 and 814)
separate from that which provides for the
necessary conditions for the validity of the
holographic will (Article 810). The distinction
can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present
provisions covering holographic wills are
taken. They read as follows:
Art. 678: A will is called holographic when
the testator writes it himself in the form and
with the requisites required in Article 688.
Art. 688: Holographic wills may be executed
only by persons of full age.
In order that the will be valid it must be
drawn on stamped paper corresponding to
the year of its execution, written in its
entirety by the testator and signed by him,
and must contain a statement of the year,
month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify
them over his signature.
Foreigners may execute holographic wills in
their own language.
This separation and distinction adds support
to the interpretation that only the
requirements of Article 810 of the New Civil
Code — and not those found in Articles 813
and 814 of the same Code — are essential
to the probate of a holographic will.
The Court of Appeals further held that
decedent Annie Sand could not validly
dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be
affirmed.
As a general rule, courts in probate
proceedings are limited to pass only upon
the extrinsic validity of the will sought to be
probated. However, in exceptional instances,
courts are not powerless to do what the
situation constrains them to do, and pass
upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably
stated in her holographic will that the
Cabadbaran property is in the name of her
late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety).
Thus, as correctly held by respondent court,
she cannot validly dispose of the whole
property, which she shares with her father's
other heirs.
IN VIEW WHEREOF, the instant petition is
GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated
March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity
of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of
Quezon City, Branch 94 in Sp. Proc. No. Q-
37171, dated November 19, 1988, admitting
to probate the holographic will of decedent
Annie Sand, is hereby REINSTATED, with the
above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
G.R. No. 169144               January 26,
2011
IN RE: IN THE MATTER OF THE
PETITION TO APPROVE THE WILL OF
RUPERTA PALAGANAS WITH PRAYER
FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR, MANUEL MIGUEL
PALAGANAS and BENJAMIN GREGORIO
PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before
Philippine court of a will executed abroad by
a foreigner although it has not been
probated in its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas
(Ruperta), a Filipino who became a
naturalized United States (U.S.) citizen, died
single and childless. In the last will and
testament she executed in California, she
designated her brother, Sergio C. Palaganas
(Sergio), as the executor of her will for she
had left properties in the Philippines and in
the U.S.
On May 19, 2003 respondent Ernesto C.
Palaganas (Ernesto), another brother of
Ruperta, filed with the Regional Trial Court
(RTC) of Malolos, Bulacan, a petition for the
probate of Ruperta’s will and for his
appointment as special administrator of her
estate.1 On October 15, 2003, however,
petitioners Manuel Miguel Palaganas
(Manuel) and Benjamin Gregorio Palaganas
(Benjamin), nephews of Ruperta, opposed
the petition on the ground that Ruperta’s will
should not be probated in the Philippines but
in the U.S. where she executed it. Manuel
and Benjamin added that, assuming
Ruperta’s will could be probated in the
Philippines, it is invalid nonetheless for
having been executed under duress and
without the testator’s full understanding of
the consequences of such act. Ernesto, they
claimed, is also not qualified to act as
administrator of the estate.
Meantime, since Ruperta’s foreign-based
siblings, Gloria Villaluz and Sergio, were on
separate occasions in the Philippines for a
short visit, respondent Ernesto filed a
motion with the RTC for leave to take their
deposition, which it granted. On April, 13,
2004 the RTC directed the parties to submit
their memorandum on the issue of whether
or not Ruperta’s U.S. will may be probated
in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an
order:2 (a) admitting to probate Ruperta’s
last will; (b) appointing respondent Ernesto
as special administrator at the request of
Sergio, the U.S.-based executor designated
in the will; and (c) issuing the Letters of
Special Administration to Ernesto.
Aggrieved by the RTC’s order, petitioner
nephews Manuel and Benjamin appealed to
the Court of Appeals (CA),3 arguing that an
unprobated will executed by an American
citizen in the U.S. cannot be probated for
the first time in the Philippines.
On July 29, 2005 the CA rendered a
decision,4 affirming the assailed order of the
RTC,5 holding that the RTC properly allowed
the probate of the will, subject to
respondent Ernesto’s submission of the
authenticated copies of the documents
specified in the order and his posting of
required bond. The CA pointed out that
Section 2, Rule 76 of the Rules of Court does
not require prior probate and allowance of
the will in the country of its execution,
before it can be probated in the Philippines.
The present case, said the CA, is different
from reprobate, which refers to a will
already probated and allowed abroad.
Reprobate is governed by different rules or
procedures. Unsatisfied with the decision,
Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is
whether or not a will executed by a foreigner
abroad may be probated in the Philippines
although it has not been previously probated
and allowed in the country where it was
executed.
The Court’s Ruling
Petitioners Manuel and Benjamin maintain
that wills executed by foreigners abroad
must first be probated and allowed in the
country of its execution before it can be
probated here. This, they claim, ensures
prior compliance with the legal formalities of
the country of its execution. They insist that
local courts can only allow probate of such
wills if the proponent proves that: (a) the
testator has been admitted for probate in
such foreign country, (b) the will has been
admitted to probate there under its laws, (c)
the probate court has jurisdiction over the
proceedings, (d) the law on probate
procedure in that foreign country and proof
of compliance with the same, and (e) the
legal requirements for the valid execution of
a will.
But our laws do not prohibit the probate of
wills executed by foreigners abroad although
the same have not as yet been probated and
allowed in the countries of their execution. A
foreign will can be given legal effects in our
jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is abroad
produces effect in the Philippines if made in
accordance with the formalities prescribed
by the law of the place where he resides, or
according to the formalities observed in his
country.6
In this connection, Section 1, Rule 73 of the
1997 Rules of Civil Procedure provides that
if the decedent is an inhabitant of a foreign
country, the RTC of the province where he
has an estate may take cognizance of the
settlement of such estate. Sections 1 and 2
of Rule 76 further state that the executor,
devisee, or legatee named in the will, or any
other person interested in the estate, may,
at any time after the death of the testator,
petition the court having jurisdiction to have
the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
Our rules require merely that the petition for
the allowance of a will must show, so far as
known to the petitioner: (a) the
jurisdictional facts; (b) the names, ages,
and residences of the heirs, legatees, and
devisees of the testator or decedent; (c) the
probable value and character of the property
of the estate; (d) the name of the person for
whom letters are prayed; and (e) if the will
has not been delivered to the court, the
name of the person having custody of it.
Jurisdictional facts refer to the fact of death
of the decedent, his residence at the time of
his death in the province where the probate
court is sitting, or if he is an inhabitant of a
foreign country, the estate he left in such
province.7 The rules do not require proof
that the foreign will has already been
allowed and probated in the country of its
execution.
In insisting that Ruperta’s will should have
been first probated and allowed by the court
of California, petitioners Manuel and
Benjamin obviously have in mind the
procedure for the reprobate of will before
admitting it here. But, reprobate or re-
authentication of a will already probated and
allowed in a foreign country is different from
that probate where the will is presented for
the first time before a competent court.
Reprobate is specifically governed by Rule
77 of the Rules of Court. Contrary to
petitioners’ stance, since this latter rule
applies only to reprobate of a will, it cannot
be made to apply to the present case. In
reprobate, the local court acknowledges as
binding the findings of the foreign probate
court provided its jurisdiction over the
matter can be established.
Besides, petitioners’ stand is fraught with
impractically.1âwphi1 If the instituted heirs
do not have the means to go abroad for the
probate of the will, it is as good as depriving
them outright of their inheritance, since our
law requires that no will shall pass either
real or personal property unless the will has
been proved and allowed by the proper
court.8
Notably, the assailed RTC order of June 17,
2004 is nothing more than an initial ruling
that the court can take cognizance of the
petition for probate of Ruperta’s will and
that, in the meantime, it was designating
Ernesto as special administrator of the
estate. The parties have yet to present
evidence of the due execution of the will, i.e.
the testator’s state of mind at the time of
the execution and compliance with the
formalities required of wills by the laws of
California. This explains the trial court’s
directive for Ernesto to submit the duly
authenticated copy of Ruperta’s will and the
certified copies of the Laws of Succession
and Probate of Will of California.
WHEREFORE, the Court DENIES the petition
and AFFIRMS the Court of Appeals decision
in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.
G.R. No. L-20234      December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and
THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for
petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from
a decision of the Court of Appeals, Sixth
Division (C.A.-G.R. No. 23763-R) reversing
that of the Court of First Instance of Cebu
(Civ. Case No. R-3819) and ordering the
dismissal of an action for partition.
The factual background appears in the
following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the
spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and
testament in the local dialect whereby they
willed that "our two parcels of land acquired
during our marriage together with all
improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did
not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living,
he or she will continue to enjoy the fruits of
the two lands aforementioned", the said two
parcels of land being covered by Tax No.
4676 and Tax No. 6677, both situated in
sitio Bucao, barrio Lugo, municipality of
Borbon, province of Cebu. Bernabe dela
Serna died on August 30, 1939, and the
aforesaid will was submitted to probate by
said Gervasia and Manuela before the Court
of First Instance of Cebu which, after due
publication as required by law and there
being no opposition, heard the evidence,
and, by Order of October 31, 1939; in
Special Proceedings No. 499, "declara
legalizado el documento Exhibit A como el
testamento y ultima voluntad del finado
Bernabe de la Serna con derecho por parte
du su viuda superstite Gervasia Rebaca y
otra testadora al propio tiempo segun el
Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y
habido consideracion de la cuantia de dichos
bienes, se decreta la distribucion sumaria de
los mismos en favor de la logataria universal
Manuela Rebaca de Potot previa prestacion
por parte de la misma de una fianza en la
sum de P500.00 para responder de
cualesquiera reclamaciones que se
presentare contra los bienes del finado
Bernabe de la Serna de los años desde esta
fecha" (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of
Gervasia Rebaca on October 14, 1952,
another petition for the probate of the same
will insofar as Gervasia was concerned was
filed on November 6, 1952, being Special
Proceedings No. 1016-R of the same Court
of First Instance of Cebu, but for failure of
the petitioner, Manuela R. Potot and her
attorney, Manuel Potot to appear, for the
hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc.
No. 1016-R, In the matter of the Probate of
the Will of Gervasia Rebaca).
The Court of First Instance ordered the
petition heard and declared the testament
null and void, for being executed contrary to
the prohibition of joint wills in the Civil Code
(Art. 669, Civil Code of 1889 and Art. 818,
Civil Code of the Philippines); but on appeal
by the testamentary heir, the Court of
Appeals reversed, on the ground that the
decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive
on the due execution of the testament.
Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil
Code; Art. 818, new Civil Code). prohibits
the making of a will jointly by two or more
persons either for their reciprocal benefit or
for the benefit of a third person. However,
this form of will has long been sanctioned by
use, and the same has continued to be
used; and when, as in the present case, one
such joint last will and testament has been
admitted to probate by final order of a Court
of competent jurisdiction, there seems to be
no alternative except to give effect to the
provisions thereof that are not contrary to
law, as was done in the case of Macrohon
vs. Saavedra, 51 Phil. 267, wherein our
Supreme Court gave effect to the provisions
of the joint will therein mentioned, saying,
"assuming that the joint will in question is
valid."
Whence this appeal by the heirs intestate of
the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the
final decree of probate, entered in 1939 by
the Court of First Instance of Cebu (when
the testator, Bernabe de la Cerna, died), has
conclusive effect as to his last will and
testament despite the fact that even then
the Civil Code already decreed the invalidity
of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error
thus committed by the probate court was an
error of law, that should have been
corrected by appeal, but which did not affect
the jurisdiction of the probate court, nor the
conclusive effect of its final decision,
however erroneous. A final judgment
rendered on a petition for the probate of a
will is binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and
sound practice demand that at the risk of
occasional errors judgment of courts should
become final at some definite date fixed by
law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521,
and other cases cited in 2 Moran, Comments
on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the
late Bernabe de la Cerna, are concluded by
the 1939 decree admitting his will to
probate. The contention that being void the
will cannot be validated, overlooks that the
ultimate decision on Whether an act is valid
or void rests with the courts, and here they
have spoken with finality when the will was
probated in 1939. On this court, the
dismissal of their action for partition was
correct.
But the Court of Appeals should have taken
into account also, to avoid future
misunderstanding, that the probate decree
in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It
could not include the disposition of the share
of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the
conjugal properties the probate court
acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it
remembered that prior to the new Civil
Code, a will could not be probated during
the testator's lifetime.
It follows that the validity of the joint will, in
so far as the estate of the wife was
concerned, must be, on her death,
reexamined and adjudicated de novo, since
a joint will is considered a separate will of
each testator. Thus regarded, the holding of
the court of First Instance of Cebu that the
joint will is one prohibited by law was
correct as to the participation of the
deceased Gervasia Rebaca in the properties
in question, for the reasons extensively
discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs. Saavedra,
51 Phil. 267.
Therefore, the undivided interest of Gervasia
Rebaca should pass upon her death to her
heirs intestate, and not exclusively to the
testamentary heir, unless some other valid
will in her favor is shown to exist, or unless
she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact
that joint wills should be in common usage
could not make them valid when our Civil
Codes consistently invalidated them,
because laws are only repealed by other
subsequent laws, and no usage to the
contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art.
7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the
judgment of the Court of Appeals in CA-G.R.
No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo,
Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar,
JJ.,  concur.